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MANUAL OF THE CONSTITUTION 



UlSriTED STATES OF AMERICA. 



MANUAL 



CONSTITUTION 



UNITED STATES OF AMERICA. 



By timothy FARHAH. 



Veritatem 

" expellas furca, tamen usque recun-et." — Horace. 

" Litera scripta manet." 




BOSTON: 
LITTLE, BROWN, AND COMPANY.' 

1867. 



X rr:i4^^ 



Entered according to Act of Congress, in the year 1867, by 

Timothy Faekak, 

in the Clerk's Office of the District Court of the District of Massachusetts. 



CAMBRIDGE : 

STEEEOTYPED AND FEINTED BY 

JOHN WILSON AND SON. 



To MY Daughter : — 

The beloved memory of my mother, whose name you bear ; and 
of your son, whose name was mine, and that of my venerated father, 
who aided the independence and constitution of his country, and 
taught me their principles ; together with the sympathy and encour- 
agement bestowed by yourself and husband during the progress of 
these labors, — entitle their result to be affectionately inscribed to 

ANNA BANCKOFT FARRAR CRANE. 



TO THE 



stude:n^t of the constitution 



The formation and establishment of the Ameri- 
can Union constitnted the origin and resnlt, the 
cause and the effect, the beginning and the end, 
of the American Revohition. By that Revoki- 
tion, the British Empire was divided into two 
(not fourteen) independent nations. The Union 
first arose from the necessities of the " common 
defence." When these necessities were an- 
swered, it was found that mternational relations, 
and the interests of commerce, internal and exter- 
nal, were scarcely less- peremptory in their claims 
to a similar provision for the " general welfare." 
The emergencies of war and of peace had thus 
united in demanding "a firm national govern- 
ernment, . . . adequate to the preservation of 
the Union and the exigencies of government; " 
and, m answer to that demand, the people 
"ordained and 'established this Constitution for 
the United States of America." 



Vlll TO THE STUDENT OF 

The infancy of the nation, the sparseness of 
the population, the severe pressure of daily toil, 
the immaturity of our institutions, and the re- 
moteness of neighbors, afforded a favorable 
opportunity for trying an experiment on the 
minimum of government, by which civil society 
could, under any circumstances, be maintained. 
The subsequent growth of the nation, the expan- 
sion of their domains, the collisions of inter- 
course, the complications of business, and the 
alternations of peace and war, at home and 
abroad, demanded, from time to time, a corre- 
sponding change in the operations of the gov- 
ernment, and an adaptation of its machinery to 
constantly recurring new "exigencies." 

The difference between a community of three 
millions of people, scattered along a narrow belt 
of sea-coast, inclosed by impenetrable forests; 
and thirty or forty millions, occupying half a 
continent, and pursuing all the objects, and by 
all the arts and means, which the reason or pas- 
sions, the interest or ambition, the virtues or 
vices, of men could invent, — must soon make 
itself apparent in the inevitable development of 
those powers of regulation which were expressly 
designed and intended to provide for just such 
increasing claims for their exercise. At no 
period of our history has the trial of our insti- 



THE CONSTITUTION. IX 

tutions, and their adaptation to expand with the 
augmented demands of a great and increasing 
nation, been so thoroughly tested, and so cau- 
tiously and intelligently accejDted, as during the 
late civil war, which can hardly yet be consid- 
ered at an end. 

It was in the midst of its events, and with a 
particular view to the practical operation of our 
government, under all the varieties of its cir- 
cumstances, and to the principles on which the 
questions evolved by them have been or should 
be decided, that this treatise has been compiled. 
Its position in this respect is different from any 
prior exposition of the Constitution. The results 
of our marked experience should be noted and 
studied, as well to enable us to trace the foot- 
steps of Divine Providence in the development 
of the destinies of a great people, as for the 
permanent use of those who may enjoy the fu- 
ture blessings of our institutions. In the hope 
of exciting the diligent attention of inquirei's 
to ascertain and understand these results, the 
following work is submitted to their considera- 
tion. 

Mount Bowdoin, 
June, 1867. 



CONTENTS. 



Chaptee Tage 

The Coxstitution 1 

I. Postulate 27 

II. The Government 31 

III. We, the People 47 

IV. The United States 63 

V. The Enactment. — This Constitution ... 74 

VI. The Purposes. — More Perfect Union ... 90 

VII. Establish Justice. — Domestic Tranquillity 113 

VIII. The Common Defence 118 

IX. The General Welfare 126 

X. Security of Liberty 133 

XL The Organization. — The Legislative Depart- 
ment. — House of Representatives. — The 
Senate. — The Separate Powers. — The 

Congress 149 

XII. The Legislative Powers. — General .... 175 

Xni. Legislative Powers. — General 189 

XIV. Legislative Powers. — General 198 

XV. Legislative Powers. — General 206 

XVI. Legislative Powers. — General 220 



Xii CONTENTS. 

Chapter Page 

XVII. Legislative Powers. — Special 235 

XVIII. Legislative Powers. — Special 250 

XIX. Legislative Powers. — Special 272 

XX. Legislative Powers, Special — Financial 

Powers 289 

XXL Legislative Powers, Special. — Financial 

Powers 310 

XXn. Legislative Powers, Special. — Commercial 

Powers 326 

XXin. Legislative Powers, Special. — War Pow- 
ers. — Miscellaneous Powers 349 

XXIV. Legislative Powers, Special 368 

XXV. Legislative Powers, Special. — Amend- 
ments 390 

XXVI. Legislative Powers, Special. — Restrictions 410 
XXVn. The Executive. — The President. — His 

Powers 430 

XXVni. The Judiciary. — Judicial Powers .... 455 

XXIX. The States 488 

XXX. State Disabilities 505 



INDEX 517 



CONSTITUTION 



THE UNITED STATES OF AMERICA. 



"We, the people of the United States, in order to form a 
more perfect union, establish justice, ensure domestic 
tranquillity, provide for the common defence, promote 
the general welfare, and secure the blessings of liberty 
to ourselves and our posterity, do ordain and establish 
this Constitution for the United States of America. 

ARTICLE I. 

Section 1. 
[1.] All legislative powers herein granted shall be 
vested in a Congress of the United States, which shall 
consist of a Senate and House of Representatives. 

• Section 2. 
[1.] The House of Representatives shall be composed 
of members chosen every second year by the people of 
the several States ; and the electors in each State shall 
have the qualifications requisite for electors of the most 
numerous branch of the State legislature. 

[2.] No person shall be a representative who shall not 
have attained to the age of twenty-five years, and been 

1 



2 THE CONSTITUTION. 

seven years a citizen of the United States, and who shall 
not, when elected, be an inhabitant of that State in which 
he shall be chosen. 

[3.] Representatives and direct taxes shall be appor- 
tioned among the several States which may be included 
within this Union, according to their respective num- 
bers, which shall be determined by adding to the whole 
number of free persons, including those bound to ser- 
vice for a term of years, and excluding Indians not 
taxed, three -fifths of all other persons. The actual 
enumeration shall be made within three years after 
the first meeting of the Congress of the United States, 
and within every subsequent term of ten years, in 
such manner as they shall by law direct. The num- 
ber of Representatives shall not exceed one for every 
thirty thousand, but each State shall have at least one 
Representative ; and, until such enumeration shall be 
made, the State ' of New Hampshire shall be entitled 
to choose three, Massachusetts eight, Rhode Island 
and Providence Plantations one, Connecticut five. New 
York six. New Jersey four, Pennsylvania eight, Dela- 
ware one, Maryland six, Virginia ten, North Carolina 
five, South Carolina five, and Georgia three. 

[4.] When vacancies happen in the representation 
from any State, the executive authority thereof shall 
issue writs of election to fill such vacancies. 

[5.] The House of Representatives shall choose their 
Speaker and other officers, and shall have the sole 
power of impeachment. 

Section 8. 

[1.] The Senate of the United States shall be com- 
posed of two Senators from each State, chosen by the 



THE CONSTITUTION. 3 

legislature thereof, for six years ; and each Senator 
shall have one vote. 

[2.] Immediately" after they shall be assembled, in 
consequence of the first election, they shall be divided 
as equally as may be into three classes. The seats of 
the Senators of the first class shall be vacated at the 
expiration of the second year, of the second class, at 
the expiration of the fourth year, and of the third class, 
at the expiration of the sixth year, so that one-third 
may be chosen every second year ; and if vacancies hap- 
pen, by resignation or otherwise, during the recess of 
the legislature of any State, the Executive thereof may 
make temporary appointments until the next meeting of 
the legislature, which shall then fill such vacancies. 

[3.] No person shall be a Senator who shall not have 
attained to the age of thirty years, and been nine years a 
citizen of the United States ; and who shall not, when 
elected, be an inhabitant of that State for which he shall 
be chosen. 

[4.] The Vice-President of the United States shall be 
President of the Senate, but shall have no vote unless 
they be equally divided. 

[5.] The Senate shall choose their other officers, and 
also a President pro tempore^ in the absence of the Vice- 
President, or when he shall exercise the office of Presi- 
dent of the United States. 

[6.] The Senate shall have the sole power to try all 
impeachments. When sitting for that purpose, they 
shall be on oath or affirmation. When the President of 
the United States is tried, the Chief-Justice shall pre- 
side ; and no person shall be convicted without the 
concurrence of two-thirds of the members present. 

[7.] Judgment, in cases of impeachment, shall not 



4 THE CONSTITUTIOK 

extend further than to removal from office, and disquali- 
cation to hold and enjoy any office of honor, trust, or 
profit under the United States ; but the party convicted 
shall nevertheless be liable and subject to indictment, 
trial, judgment, and punishment, according to law. 

Section 4. 

[1.] The times, places, and manner of holding elec- 
tions for Senators and Representatives shall be prescribed 
in each State by the legislature thereof; but the Con- 
gress may at any time, by law, make or alter such regu- 
lations, except as to the places of choosing Senators. 

[2.] The Congress shall assemble at least once in 
every year ; and such meeting shall be on the first Mon- 
day in December, unless they shall by law appoint a 

different day. 

Section 5. 

[1.] Each House shall be the judge of the elections, 
returns, and qualifications of its own members, and a 
majority of each shall constitute a quorum to do busi- 
ness ; but a smaller number may adjourn from day to 
day, and may be authorized to compel the attendance of 
absent members, in such manner and under such pen- 
alties as each House may provide. 

[2.] Each House may determine the rules of its pro- 
ceedings, punish its members for disorderly behavior, 
and, with the concurrence of two-thirds, expel a member. 

[3.] Each House shall keep a journal of its proceed- 
ings, and from time to time publish the same, excepting 
such parts as may in their judgment require secrecy ; 
and the yeas and nays of the members of either House 
on any question, shall, at the desire of one-fifth of those 
present, be entered on the journal. 



THE CONSTITUTION. 5 

[4.] Neither House, during the session of Congress, 
shall, without the consent of the other, adjourn for more 
than three days, nor to any other place than that in 
which the two Houses shall be sitting. 

Section 6. 

[1.] The Senators and Representatives shall receive a 
compensation for their services, to be ascertained by law, 
and paid out of the treasury of the United States. They 
shall in all cases, except treason, felony, and breach of 
the peace, be privileged from arrest during their attend- 
ance at the session of their respective Houses, and in 
going to and returning from the same; and for any 
speech or debate in either House, they shall not be ques- 
tioned in any other place. 

[2.] No Senator or Representative shall, during the 

time for which he was elected, be appointed to any civil 

office under the authority of the United States, which 

shall have been created, or the emoluments whereof shall 

have been increased during such time ; and no person 

holding any office under the United States shall be 

a member of either House during his continuance in 

office. 

Section 7. 

[1.] All bills for raising revenue shall originate in the 
House of Representatives ; but the Senate may propose 
or concur with amendments, as on other bills. 

[2.] Every bill which shall have passed the House of 
Representatives and the Senate, shall, before it become a 
law, be presented to the President of the United States. 
If he approve, he shall sign it ; but, if not, he shall 
return it, with his objections, to that House in which it 
shall have originated, who shall enter the objections at 



6 THE CONSTITUTION. 

large on their journal, and proceed to reconsider it. If, 
after such reconsideration, two-thirds of that House shall 
agree to pass the bill, it shall be sent, together with the 
objections, to the other House, by which it shall likewise 
be reconsidered, and, if approved by two-thirds of that 
House, it shall become a law. But in all such cases the 
votes of both Houses shall be determined by yeas and 
nays, and the names of the persons voting for and 
against the bill shall be entered on the journal of each 
House respectively. If any bill shall not be returned by 
the President within ten days (Sundays excepted) after 
it shall have been presented to him, the same shall be a 
law, in like manner as if he had signed it, unless the 
Congress, by their adjournment, prevent its return, in 
■which case it shall not be a law. 

[3.] Every order, resolution, or vote, to which the con- 
currence of the Senate and House of Representatives 
may be necessary (except on a question of adjournment) , 
shall be presented to the President of the United States ; 
and, before the same shall take effect, shall be approved 
by him, or, being disapproved by him, shall be repassed by 
two-thirds of the Senate and House of Representatives, 
according to the rules and limitations prescribed in the 

case of a bill. 

Section 8. 

The Congress shall have power, — 

[1.] To lay and collect taxes, duties, imposts, and 
excises ; to pay the debts and provide for the common 
defence and general welfare of the United States ; but 
all duties, imposts, and excises shall be uniform through- 
out the United States : 

[2.] To borrow money on the credit of the United 
States : 



THE CONSTITUTION. 7 

[3.] To regulate commerce with foreign nations, and 
among the several States, and with the Indian tribes : 

[4.] To establish an uniform rule of naturalization, 
and uniform laws on the subject of bankruptcies, through- 
out the United States : 

[5.] To coin money, regulate the value thereof, and 
of foreign coin, and fix the standard of weights and 
measures : 

[G.] To provide for the punishment of counterfeiting 
the securities and current coin of the United States : 

[7.] To establish post-offices and post-roads : 

[8.] To promote the progress of science and useful 
arts, by securing, for limited times, to authors and in- 
ventors the exclusive right to their respective writings 
and discoveries : 

[9.] To constitute tribunals inferior to the Supreme 
Court : 

[10.] To define and punish piracies, and felonies com- 
mitted on the high seas, and offences against the law of 
nations : 

[11.] To declare war, grant letters of marque and 
reprisal, and make rules concerning captures on land 
and water: 

[12.] To raise and support armies ; but no appropria- 
tion of money to that use shall be for a longer term than 
two years : 

[13.] To provide and maintain a navy: 

[14.] To make rules for the government and regula- 
tion of the land and naval forces : 

[15.] To provide for calling forth the militia to exe- 
cute the laws of the Union, suppress insurrections, and 
repel invasions : 

[16.] To provide for organizing, arming, and disciplin- 



8 THE CONSTITUTION. 

ing the militia, and for governing such part of them as 
m^y be employed in the service of the United States, 
reserving to the States respectively the appointment of 
the officers, and the authority of training the militia 
according to the discipline prescribed by Congress : 

[17.] To exercise exclusive legislation, in all cases 
whatsoever, over such district (not exceeding ten miles 
square) as may, by cession of particular States, and the 
acceptance of Congress, become the seat of government 
of the United States ; and to exercise like authority over 
all places purchased, by the consent of the Legislature of 
the State in which the same shall be, for the erection 
of forts, magazines, arsenals, dock-yards, and other 
needful buildings: — And 

[18.] To make all laws which shall be necessary 
and proper for carrying into execution the foregoing 
powers, and all other powers vested by this Constitu- 
tion in the Government of the United States, or in any 
department or officer thereof. 

Section 9. 

[1.] The migration or importation of such persons, as 
any of the States now existing shall think proper to 
admit, shall not be prohibited by the Congress prior 
to the year one thousand eight hundred and eight ; but a 
tax or duty may be imposed on such importation, not 
exceeding ten dollars for each person. 

[2.] The privilege of the writ of habeas corpus shall 
not be suspended, unless when in cases of rebellion or 
invasion the public safety may require it. 

[3.] No bill of attainder, or ex post facto law, shall be 
passed. 

[4.] No capitation, or other direct tax, shall be laid, 



THE CONSTITUTION. 9 

unless in proportion to the census, or enumeration herein 
before directed to be taken. 

[5.] No tax or duty shall be laid on articles exported 
from any State. No preference shall be given, by any 
regulation of commerce or revenue, to the ports of one 
State over those of another ; nor shall vessels bound to 
or from one State be obliged to enter, clear, or pay duties 
in another. 

[6.] No money shall be drawn from the treasury, but 
consequence of appropriations made by law ; and a regu- 
lar statement and account of the receipts and expendi- 
tures of all public money shall be published from time to 
time. 

[7.] No title of nobility shall be granted by the United 
States : And no person holding any office of profit or 
trust under them shall, without the consent of the Con- 
gress, accept of any present, emolument, office, or title 
of any kind whatever, from any king, prince, or foreign 

State. 

Section 10. 

[1.] No State shall enter into any treaty, alliance, or 
confederation ; grant letters of marque and reprisal ; 
coin money ; emit bills of credit ; make any thing but 
gold and silver coin a tender in payment of debts ; pass 
any bill of attainder, ex post facto law, or law impairing 
the obligation of contracts, or grant any title of nobility. 

[2.] No State shall, without the consent of the Con- 
gress, lay any imposts or duties on imports or exports, 
except what may be absolutely necessary for executing 
its inspection laws ; and the net produce of all duties 
and imposts, laid by any State on imports or exports, 
shall be for the use of the treasury of the United States ; 
and all such laws shall be subject to the revision and 



10 THE CONSTITUTION. 

control of the Congress. No State shall, without the 
consent of Congress, lay any duty of tonnage, keep 
troops or ships of war in time of peace, enter into any 
agreement or compact with another State or with a 
foreign power, or engage in war, unless actually invaded 
or in such imminent danger as will not admit of delay. 

ARTICLE 11. 

Section 1. 

[1.] The executive power shall be vested in a Presi- 
dent of the United States of America. He shall hold 
his office during the term of four years, and, together 
with the Vice-President, chosen for the same term, be 
elected as follows : — 

[2.] Each State shall appoint, in such manner as the 
Legislature thereof may direct, a number of electors 
equal to the whole number of Senators and Representa- 
tives to which the State may be entitled in the Congress ; 
but no Senator or Representative, or person holding an 
office of trust or profit under the United States, shall be 
appointed an elector. 

[3.] The electors shall meet in their respective States, 
and vote by ballot for two persons, of whom one at least 
shall not be an inhabitant of the same State with them- 
selves. And they shall make a list of all the persons 
voted for, and of the number of votes for each ; which 
list they shall sign and certify, and transmit, sealed, to 
the seat of the government of the United States, directed 
to the President of the Senate. The ' President of the 
Senate shall, in the presence of the Senate and House 
of Representatives, open all the certificates, and the 
votes shall then be counted. The person having the 



THE CONSTITUTION. 11 

greatest number of votes shall be the President, if such 
number be a majority of the whole number of electors 
appointed ; and if there be more than one who have such 
majority, and have an equal number of votes, then the 
House of Representatives shall immediately choose by 
ballot one of them for President ; and if no person have 
a majority, then, from the five highest on the list, tlie 
said House shall in like manner choose the President. 
But, in choosing the President, the votes shall be taken 
by States, the representation from each State having one 
vote ; a quorum for this purpose shall consist of a mem- 
ber or members from two-thirds of the States, and a 
majority of all the States shall be necessary to a choice. 
In every case, after the choice of the President, the 
person having the greatest number of votes of the elec- 
tors shall be the Vice-President ; but, if there should 
remain two or more who have equal votes, the Senate 
shall choose from them by ballot the Vice-President. 

[4.] The Congress may determine the time of choos- 
ing the electors, and the day on which they shall give 
their votes ; which day shall be the same throughout the 
United States. 

[5.] No person, except a natural-born citizen, or a 
citizen of the United States at the time of the adoption 
of this Constitution, shall be eligible to the office of 
President ; neither shall any person be eligible to that 
office who shall not have attained to the age of thirty- 
five years, and been fourteen years a resident within the 
United States. 

[6.] In case oi the removal of the President from 
office, or of his death, resignation, or inability to dis- 
charge the powers and duties of the said office, the same 
shall devolve on the Vice-President; and the Congress 



12 THE CONSTITUTION. 

may by law provide for the case of removal, death, resig- 
nation, or inability, both of the President and Vice- 
President, declaring what officer shall then act as 
President, and such officer shall act accordingly, until 
the disability be removed, or a President shall be elected. 

[7.] The President shall, at stated times, receive for 
his services a compensation, which shall neither be in- 
creased nor diminished during the period for which he 
shall have been elected, and he shall not receive within 
that period any other emolument from the United States 
or any of them. 

[8.] Before he enter on the execution of his office, he 
shall take the following oath or affirmation : — 

[9.] " I do solemnly swear (or affirm) that I will 
faithfully execute the office of President of the United 
States, and will, to the best of my ability, preserve, pro- 
tect, and defend the Constitution of the United States. 

Section 2. 

[1.] The President shall be commander-in-chief of 
the army and navy of the United States, and of the 
militia of the several States, when called into the actual 
service of the United States. He may require the 
opinion, in writing, of the principal officer in each of 
the executive departments, upon any subject relating to 
the duties of their respective offices ; and he shall have 
power to grant reprieves and pardons for offences against 
the United States, except in cases of impeachment. 

[2.] He shall have power, by and with the advice and 
consent of the Senate, to make treaties, provided two- 
thirds of the Senators present concur ; and he shall 
nominate, and by and with the advice and consent of the 
Senate, shall appoint ambassadors, other public ministers 



THE CONSTITUTION. 13 

and consuls, Judges of the Supreme Court, and all other 
officers of the United States, whose appointments are 
not herein otherwise provided for, and which shall be 
established by law ; but the Congress may by law vest 
the appointment of such inferior officers, as they think 
proper, in the President alone, in the courts of law, or in 
the heads of departments. 

[3.] The President shall have power to fill up all 
vacancies that may happen during the recess of the Sen- 
ate, by granting commissions, which shall expire at the 
end of their next session. 

Section 3. 

[1.] He shall from time to time give to the Congress 
information of the state of the Union, and recommend 
to their consideration such measures as he shall judge 
necessary and expedient; he may, on extraordinary 
occasions, convene both Houses, or either of them, and, 
in case of disagreement between them with respect to 
the time of adjournment, he may adjourn them to such 
time as he shall think proper ; he shall receive ambassa- 
dors and other public ministers ; he shall take care that 
the laws be faithfully executed, and shall commission all 
the officers of the United States. 

Section 4. • 

[1.] The President, Vice-President, and all civil 
officers of the United States, shall be removed from office 
on impeachment for, and conviction of, treason, bribery, 
or other high crimes and misdemeanors. 



14 THE CONSTITUTION. 

ARTICLE III. 

Section 1. 

[1.] The judicial power of the United States shall be 
vested in one Supreme Court, and in such inferior courts 
as the Congress may from time to time ordain and estab- 
lish. The Judges, both of the Supreme and inferior 
Courts, shall hold their offices during good behavior ; 
and shall, at stated times, receive for their services a 
compensation which shall not be diminished during their 
continuance in office. 

Section 2. 

[1.] The judicial power shall extend to all cases in 
law and equity arising under this Constitution, the laws 
of the United States, and treaties made, or which shall 
be made, under their authority ; to all cases affecting 
ambassadors, other public ministers and consuls ; to all 
'Cases of admiralty and maritime jurisdiction ; to contro- 
versies to which the United States shall be a party ; to 
controversies between two or more States, between a 
State and citizens of another State, between citizens of 
different States, between citizens of the same State claim- 
ing lands under grants of different States, and between a 
State or the citizens thereof and foreign States, citizens, 
or subjects. • 

[2.] In all cases affecting ambassadors, other public 
ministers and consuls, and those in which a State shall 
be a party, the Supreme Court shall have original juris- 
diction. In all the other cases before mentioned, the 
Supreme Court shall have appellate jurisdiction, both as 
to law and fact, with such exceptions and under such 
regulations as the Congress shall make. 



THE CONSTITUTION. 15 

[3.] The trial of all crimes, except in cases of im- 
peachment, shall be by jury ; and such trial shall be held 
in the State where the said crimes shall have been com- 
mitted : but, when not committed within any State, the 
trial shall be at such place or places as the Congress 
may by law have directed. 

Section 3. 

[1.] Treason against the United States shall consist 
only in levying war against them, or in adhering to their 
enemies, giving them aid and comfort. No person shall 
be convicted of treason unless on the testimony of two 
witnesses to the same overt act, or on confession in 
open court. 

[2.] The Congress shall have power to declare the 
punishment of treason ; but no attainder of treason shall 
work corruption of blood, or forfeiture, except during 
the life of the person attainted. 

ARTICLE IV. 

Section 1. 
[1.] Full faith and credit shall be given in each State 
to the public acts, records, and judicial proceedings of 
every other State. And the Congress may by general 
laws prescribe the manner in which such acts, records, 
and proceedings shall be proved, and the effect thereof. 

Section 2. 

[1.] The citizens of each State shall be entitled to 
all privileges and immunities of citizens in the several 
States. 

[2.] A person charged in any State with treason, 



16 THE CONSTITUTION. 

felony, or other crime, who shall flee from justice, and 
be found in another State, shall, on demand of the 
executive authority of the State from which he fled, be 
delivered up, to be removed to the State having jurisdic- 
tion of the crime. 

[3.] No person held to service or labor in one State, 
under the laws thereof, escaping into another, shall, in 
consequence of any law or regulation therein, be dis- 
charged from such service or labor, but shall be delivered 
up on claim of the party to whom such service or labor 
may be due. 

Section 3. 

[1.] New States may be admitted by the Congress 
into this Union ; but no new State shall be formed or 
erected within the jurisdiction of any other State ; nor 
any State be formed by the junction of two or more 
States, or parts of States, without the consent of the 
legislatures of the States concerned, as well as of the 
Congress. 

[2.] The Congress shall have power to dispose of and 
make all needful rules and regulations respecting the 
territory or other property belonging to the United 
States; and nothing in this Constitution shall be so con- 
strued as to prejudice any claims of the United States, 
or of any particular State. 

Section 4. 
[1.] The United States shall guarantee to every State 
in this Union a republican form of government, and shall 
protect each of them against invasion ; and, on applica- 
tion of the legislature, or of the executive (when the 
legislature cannot be convened), against domestic vio- 
lence. 



THE CONSTITUTION. 17 

ARTICLE V. 

[1.] The Congress, whenever two -thirds of both 
Houses shall deem it necessary, shall propose amend- 
ments to this Constitution, or, on the application of 
the legislatures of two-thirds of the several States, shall 
call a convention for proposing amendments, which, in 
either case, shall be valid, to all intents and purposes, as 
part of this Constitution, when ratified by the legisla- 
tures of three-fourths of the several States, or by con- 
ventions in three-fourths thereof, as the one or the other 
mode of ratification may be proposed by the Congress : 
Provided, that no amendment, which may be made prior 
to the year one thousand eight hundred and eight, shall 
in any manner affect the first and fourth clauses in the 
ninth section of the first article ; and that no State, with- 
out its consent, shall be deprived of its equal suffrage in 
the Senate. 

ARTICLE VL 

[1.] All debts contracted and engagements entered 
into before the adoption of this Constitution shall be as 
valid against the United States under this Constitution 
as under the Confederation. 

[2.] This Constitution, and the laws of the United 
States which shall be made in pursuance thereof; and 
all treaties made, or which shall be made, under the 
authority of the United States, shall be the supreme law 
of the land; and the judges in every State shall be 
bound thereby ; any thing in the constitution or laws of 
any State to the contrary notwithstanding. 

[3.] The Senators and Representatives before men- 
tioned, and the members of the several State legislatures, 

2 



18 THE CONSTITUTION 

and all executive and judicial officers, both of the United 
States and of the several States, shall be bound, by oath 
or affirmation, to support this Constitution ; but no reli- 
gious test shall ever be required as a qualification to any 
office or public trust under the United States. 

ARTICLE VII. 

[1.] The ratification of the conventions of nine States 
shall be sufficient for the establishment of this Constitu- 
tion between the States so ratifying the same. 



AMENDMENTS TO THE CONSTITUTION. 



ARTICLE I. 

Congress shall make no law respecting an establish- 
ment of religion, or prohibiting the free exercise thereof; 
or abridging the freedom of speech, or of the press ; or 
of the right of the people peaceably to assemble, and to 
petition the government for a redress of grievances. 

ARTICLE IL 

A well-regulated militia being necessary to the security 
of a free state, the right of the people to keep and bear 
arms shall not be infringed. 

ARTICLE IIL 

No soldier shall, in time of peace, be quartered in any 
house without the consent of the owner ; nor in time of 
war, but in a manner to be prescribed by law. 

ARTICLE IV. 

The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches 

and seizures, shall not be violated ; and no warrants 

shall issue, but upon probable cause, supported by oath 

[19] 



20 THE CONSTITUTION. 

i 

i 

or affirmation, and particularly describing the place to be J 

searched, and the persons or things to be seized. .1 

; ARTICLE V. j 

i 

No person shall be held to answer for a capital, or | 

otherwise infamous crime, unless on a presentment | 

or indictment of a grand jury, except in cases arising m | 

the land or naval forces, or in the militia, when in actual j 

service, in time of war or public danger ; nor shall any ; 

person be subject for the same offence to be twice put J 

in jeopardy of life or limb ; nor shall be compelled, in j 

any criminal case, to be a witness against himself; nor ! 

be deprived of life, liberty, or property, without due : 

process of law ; nor shall private property be taken for 

public use without just compensation. ; 

ARTICLE VL : 

In all criminal prosecutions, the accused shall enjoy ! 

the right to a speedy and public trial, by an impartial ; 

jury of the State and district wherein the crime shall ! 

have been committed, which district shall have been pre- '■ 

viously ascertained by law ; and to be informed of the ' 

nature and cause of the accusation ; to be confronted ! 

with the witnesses against him ; to have compulsory pro- i 

cess for obtaining witnesses in his favor ; and to have the ' 

assistance of counsel for his defence. i 

ARTICLE VIL j 

In suits at common law, where the value in contro- , 

versy shall exceed twenty dollars, the right of trial by j 



THE CONSTITUTION. 21 

jury shall be preserved ; and no fact tried by a jury 
shall be otherwise re-examined in any court of the United 
States, than according to the rules of the common law. 



ARTICLE VIII. 

Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishments in- 
flicted. 

ARTICLE IX. 

The enumeration in the Constitution of certain rights, 
shall not be construed to deny or disparage others re- 
tained by the people. 



ARTICLE X. 

The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are re- 
served to the States respectively, or to the people. 

ARTICLE XL 

The judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com- 
menced or prosecuted against one of the United States 
by citizens of another State, or by citizens or subjects of 
any foreign State. 

ARTICLE XIL 

1. The electors shall meet in their respective States, 
and vote by ballot for President and Yice-President, one 



22 THE CONSTITUTION. 

of whom, at least, shall not be an inhabitant of the same 
State with themselves ; they shall name in the ballots the 
person voted for as President, and, in distinct ballots, the 
person voted for as Yice-President ; and they shall make 
distinct lists of all persons voted for as President, and 
of all persons voted for as Yice-President, and of the 
number of votes for each, which list they shall sign and 
certify, and transmit sealed to the seat of the govern- 
ment of the United States, directed to the President of 
the Senate ; the President of the Senate shall, in the 
presence of the Senate and House of Representatives, 
open all the certificates, and the votes shall then be 
counted : the person having the greatest number of votes 
for President, shall be the President, if such number be 
a majority of the whole number of electors appointed ; 
and if no person have such a majority, then, from the 
persons having the highest numbers, not exceeding 
three, on the list of those voted for as President, the 
House of Representatives shall choose immediately, by 
ballot, the President. But, in choosing the President, 
the votes shall be taken by States, the representation 
from each State having one vote. A quorum for this 
purpose shall consist of a member or members from two- 
thirds of the States, and a majority of all the States shall 
be necessary to a choice. And, if the House of Repre- 
sentatives shall not choose a President, whenever the 
right of choice shall devolve upon them, before the fourth 
day of March next following, then the Yice-President 
shall act as President, as in the case of the death or 
other constitutional disability of the President. 

2. The person having the greatest number of votes 
as Yice-President, shall be the Yice-President, if such 
number be a majority of the whole number of electors 



THE CONSTITUTION. 23 

appointed ; and if no person have a majority, then, from 
the two highest numbers on the list, the Senate shall 
choose the Vice-President. A quorum for the purpose 
shall consist of two-thirds of the whole number of Sena- 
tors : a majority of the whole number shall be necessary 
to a choice. 

3. But no person, constitutionally ineligible to the 
office of President, shall be eligible to that of Vice- 
President of the United States. 

ARTICLE XIII. 

1. Neither slavery nor involuntary servitude, except 
as a punishment for crime, whereof the party shall have 
been duly convicted, shall exist within the United States, 
or any place subject to their jurisdiction. 

2. Congress shall have power to enforce this article 
by appropriate legislation. 

ARTICLE XIV. 

1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citi- 
zens of the United States and of the States wherein they 
reside. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of 
the United States ; nor shall any State deprive any per- 
son of life, liberty, or property, without due process of 
law ; nor deny to any person within its jurisdiction the 
equal protection of the laws. 

2. Representatives shall be apportioned among the 
several States according to their respective numbers, 
counting the whole number of persons in each State, 



24 THE CONSTITUTION. 

excluding Indians not taxed ; but, wlienever the right to 
vote at any election for the choice of electors for Presi- 
dent and Yice-President of the United States, Repre- 
sentatives in Congress, the executive and judicial officers 
of a State, or members of the legislature thereof, is 
denied to any of the male inhabitants of such State, 
being twenty-one years of age and citizens of the United 
States, or in any way abridged, except for participation 
in rebellion or other crime, the basis of representation 
therein shall be reduced in the proportion which the 
number of such male citizens shall bear to the whole 
number of male citizens twenty-one years of age in such 
State. 

3. No person shall be a Senator or Representative in 
Congress, or elector of President and Yice-President, 
or hold any office, civil or military, under the United 
States, or under any State, who, having previously taken 
an oath as a member of Congress, or as an officer of the 
United States, or as a member of any State legislature, 
or as an executive or judicial officer of any State, to 
support the Constitution of the United States, shall have 
engaged in insurrection or rebellion against the same, or 
given aid or comfort to the enemies thereof; but Con- 
gress may, by a vote of two-thirds of each House, remove 
such disability. 

4. The validity of the public debt of the United 
States authorized by law, including debts incurred for 
the payment of pensions and bounties for services in 
suppressing insurrection or rebellion, shall not be ques- 
tioned. But neither the United States, nor any State, 
shall assume or pay any debt or obligation incurred 
in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of any 



THE CONSTITUTION. 25 

slave ; but all such debts, obligations, and claims shall 
be held illegal and void. 

5. The Congress shall have power to enforce, by 
appropriate legislation, -the provisions of this article. 



MANUAL OF THE CONSTITUTION. 



CHAPTER I. 

POSTULATE. 

§ 1. I]sr entering upon the study of the Con- 
stitution of the United States, two princij^les 
should be firmly established in the mind of the 
student: first, that it is "the supreme law of 
the land;" and, second, that it constitutes a 
government for the purpose, and of course with 
the power and duty, of executing it. The first 
is proclaimed by the Constitution itself, in these 
precise words, and will not be denied or doubted.^ 
The second rests on the same unquestionable 
authority, though more circuitously and indi- 
rectly asserted. 

§ 2. It is a just principle, that " every govern- 
ment ought to possess the means of executing its 
own provisions, by its own authority." ^ There 

1 " We must either admit the proposition, or deny the authority." — 
Webster. 

' Federalist, No. 80. 

[27] 



28 POSTULATE. 

must necessarily be a constitutional mode of 
giving construction and efficacy to all constitu- 
tional provisions. The first three Articles of 
the Constitution provide for the three several 
departments of what it repeatedly calls "the 
government of the United States," assigning 
appropriate powers and duties to each. The 
executive department is expressly required to 
" take care that the laws be faithfully executed," 
including the Constitution itself, — the funda- 
mental and " supreme law," — and all other law ; 
and to make oath that he "will faithfully exe- 
cute the office." The legislative department is 
authorized "to make all laws Viecessary and 
proper for carrying into execution" the powers 
vested in the executive or any other department 
of the government. The judicial department, 
or "the judicial power^ shall extend to all cases 
in law or equity arising under this Constitution ; " 
that is, from any action or omission of the Gov- 
ernment or by its authority, and which may 
involve the meaning and construction of every 
sentence in the Constitution. As every power 
conferi'ed necessarily involves a duty, here is 
ample provision made for the complete execution 
of every part and parcel of the Constitution. 
It does not cover the aggregate merely; but 
every word, sentence, and portion of it in detail, 
from "We, the people," to the end of Article 
YII., and all the Amendments. 

§ 3. This duty of the government was first 



POSTULATE. 29 

directly promulgated by the convention who 
formed the instrument. In their resolution for 
jDutting the Constitution into operation, after pro- 
viding for the choice of the first President and 
members of Congress, they say that they shall 
" proceed to execute this Constitution." It was 
recognized and acted upon by the first Presi- 
dent and Congress, in the enactment of the first 
statute ever made under the Constitution. The 
sixth Article of the Constitution, requiring cer- 
tain oaths to be taken by officers of the general 
and local governments, assigned no special duty 
to the government in general, or to Congress in 
particular, respecting its execution. IS'everthe- 
less, they made this statute for the express 
purpose of executing it; and it has been ap- 
proved and practised upon, by all classes of the 
government and people, as long as the govern- 
ment has stood, and is still in force. The same 
duty has also been repeatedly exercised in the 
enactment of divers other laws, similarly called 
for, though not specially authorized, and ex- 
pressly approved and sanctioned by the adjudi- 
cations of the Supreme Court. A law is a rule 
of conduct, and a supreme law is above all 
other law. A law without a sanction is no law, 
and a rule neither followed nor retributed is 
void. Hence the necessity which compelled the 
American people to make in their government 
an agent, with power to execute the sujireme 
law, and every part of it, — in the language of 



30 POSTULATE. 

the "Federalist,"^ "a common government, with 
powers equal to its objects;" having constitu- 
tional power to give effect to all constitutional 
provisions. 

§ 4. With these two im^Dortant principles thor- 
oughly imbibed, and constantly held in view, the 
true character of the Constitution, and the extent 
of the powers of the government, will be more 
easily investigated, and more readily understood. 
I enter into no analysis or vindication of these 
principles, because they are considered as purely 
elementary and fundamental ; as incontrovertible 
maxims, if not self-evident truths, without which 
there can be no government. If the Constitu- 
tion is not law, or if the government is not 
bound, has not the right and duty, to execute 
it, there is nothing left that is worth a discus- 
sion. 

1 No. 62. 



CHAPTER 11. 

THE GOVERNMENT. 

§ 5. The first clause of the Constitution is 
not only the first in the order of its arrangement, 
but the first in the importance and significance 
of its contents. It is a declaration of the 
authority by which it was made, the purposes 
for which it was made, the fundamental law by 
which these purposes are to be executed, and 
the country and nation to which they are applied. 
It is, in fact, the essence and epitome of the 
whole instrument, by which the government is 
ordained and created, and its purposes, authority, 
and duty established. It is in these comprehen- 
sive and emphatic words: "We, the people of 
the United States, in order to form a more per- 
fect union, establish justice, insure domestic 
tranquillity, provide for the common defence, 
promote the general welfare, and secure the 
blessings of liberty to ourselves and our pos- 
terity, do ordain and establish this Constitution 
for the United States of America." 

[31] 



32 THE GOVERNMENT. 

§ 6. This enacting clause, though standing at 
the head, and being introductory to all the rest, 
was really one of the last that was incorporated 
in the Constitution. The circumstances out of 
which it grew, the accretions by which from 
time to time it was accumulated, the alterations 
and variations through which it passed in the 
process, and the time and manner of its incor- 
poration in its present shape as a part of the 
instrument, are interesting facts in its history, 
and well accord with the importance of its pres- 
ent position as the leading, enacting, and most 
mandatory section of the Constitution. 

§ 7. The principal materials out of which the 
Constitution was compiled, so far as they were 
not original with the convention, were found em- 
bodied, classified, and commingled with others, 
in at least seven different formal instruments. 
Saying nothing of the JSTew-England Confed- 
eracy of 1643, the Albany Plan of Union of 
1754, or the plan proposed by Dr. Franklin to 
Congress in 1775, there was, '1st, The Articles 
of Confederation of 1781, to which the atten- 
tion of the convention was directly called by the 
terms of their appointment ; 2d, A set of resolu- 
tions, introduced, on consultation with his asso- 
ciates, by Mr. Randolph, and called the Virginia 
Plan; 3d, A Constitution in form, drawn up by 
Mr. Charles Pinckney, and called the South- 
Carolina Plan; 4th, A set of resolutions, drawn 
up on consultation, and introduced by Mr. Pat- 



THE GOVERNMENT. 33 

terson, and called the ^New- Jersey Plan; 5th, 
Ml". Hamilton's draft of a Constitution in form, 
exjDOunded by him to the convention in his 
speech of June 18, 1787; 6th, The first draft 
made under the orders of the convention by their 
Committee of Detail; and, 7th, The final draft 
made by their Committee of Revision. Each 
new draft had the benefit of the substance and 
of the discussion of all the preceding-. 

§ 8. The first sentence of the Articles of 
Confederation was in these words: "Articles 
of Confederation and perpetual Union between 
the States of l^^ew Hampshire, Massachusetts 
Bay, Rhode Island and Providence Plantations, 
Connecticut, Isew York, 'Ngw Jersey, Penn- 
sylvania, Delaware, Maryland, Virginia, l^orth 
Carolina, South Carolina, and Georgia." It was 
a mere naked title to the instrument, and pro- 
ceeded "Article I." &c. to "Article XIII." The 
Yirginia Plan was a set of resolutions, num- 
bered one to fifteen, without title or prelude of 
any sort. The South-Carolina Plan was a draft 
of a Federal government, and began with these 
words : " AYe, the people of the States of 'New 
Hampshire, Massachusetts, Rhode Island and 
Providence Plantations, Connecticut, New York, 
New Jersey, Pennsylvania, Delaware, Maryland, 
Virginia", JN^orth Carolina, South Carolina, and 
Georgia, do ordain, declare, and establish the 
following Constitution for the government of 
ourselves and posterity." The ^NTew- Jersey Plan, 

3 



34: THE GOVERNMENT. 

like the Yirginia, was a mere set of reso- 
lutions, numerically arranged, without title or 
prelude. Mr. Hamilton's draft began in these 
words : " The people of the United States of 
America do ordain and establish this Constitu- 
tion, for the government of themselves and their 
posterity." The Yirginia Plan was made the 
text for the proceedings of the convention for 
about two months, during which time it had 
been debated and altered, till the twenty-sixth 
day of July, 1787, when, in the form of twenty- 
three distinct resolutions adopted by the con- 
vention, it was referred to the Committee of 
Detail " for the purpose of reporting a Constitu- 
tion conformably to the proceedings aforesaid." 
The South-Carolina and the I*^ew- Jersey Plans 
were at the same time referred to the same 
Committee, without being specially considered 
by the convention. After an adjournment for 
ten days, the convention received the report of 
the Committee of Detail, which formed a new 
text for the subsequent debates and proceedings 
of the convention. 

§ 9. The first draft of the Constitution, as 
reported from this Committee by Mr. Rutledge, 
their chairman, followed the form and arrange- 
ment of the South-Carolina Plan, and, in many 
respects, the substance also; and this, not unfre- 
quently, in preference to the resolutions which 
had already received the sanction of a vote of 
the convention. The question, how far the 



THE GOVERNMENT. 35 

journal copy of Mr. Pinckney's draft is strictly 
accurate, is not here entertained. For all the 
purposes of this general comparison, there can 
be no doubt but it is sufficiently so. Mr. Rut- 
ledge, as a member of the South-Carolina dele- 
gation, had acquiesced at least in the introduction 
of that plan which went by their name; and, as 
chairman of the Committee of Detail, had doubt- 
less drawn their report, which he presented. 
These two facts woidd very naturally account 
for very many coincidences. 

§ 10. In regard to the first sentence, which 
we are now examining, the Committee of Detail 
followed the South-Carolina Plan exactly. Be- 
tween this and Mr. Hamilton's, besides minor 
differences, two very important ones will be 
noted. In the one, the people of the individual 
States, in their corporate capacity and by their 
corporate name, are the parties, and the ordain- 
ing and enacting power, — " We, the people of 
N^ew Hampshire," &c. ; and " the following Con- 
stitution," the object. In the other, " the people 
of the United States," in their corporate capa- 
city and by their national name, are the sole 
parties, and the constituting and ordaining pow- 
er, — " We, the people of the United States ; " 
and " this Constitution," the object. The clause 
was adopted by the convention without opposi- 
tion, as it was reported by the Committee of 
Detail in the words 'of the South-Carolina Plan ; 
and, on the 8th of September following, went. 



36 THE GOVEKNMENT. 

with the other articles agreed to by the conven- 
tion, to the Committee of Kevision, appointed 
" to revise the style of, and arrange, the Articles 
agreed to by the House." 

§ 11. This committee was appointed by ballot, 
and consisted of Messrs. William Samuel John- 
son, of Connecticut; Alexander Hamilton, of 
l!^ew York; Gouverneur Morris, of Pennsyl- 
vania; James Madison, of Virginia; and Kufus 
King, of Massachusetts. They were, individu- 
ally, strong advocates of a "firm national gov- 
ernment;" and, as a body, represented more 
power, wisdom, and statesmanship, than could 
have been collected in any other similar body 
from that convention, or probably elsewhere 
in the country. It is not to be presumed 
that such a committee was intended to be 
tied down to the mere duty of scriveners and 
copyists. 

§ 12. In regard to this introductory clause, 
they departed entirely from the South-Carolina 
form, which had been copied by the Committee 
of Detail and accepted by the convention, and 
followed Mr. Hamilton's draft in the two par- 
ticulars above mentioned, — " the people of the 
United States " and " this Constitution," instead 
of "the people of the [individual] States" and 
" the followuig Constitution ; " and then substi- 
tuted the words, " in order to form a more 
perfect union, establish justice, insure domestic 
tranquillity, provide for the common defence, 



THE GOVERNMENT. 37 

promote the general welfare, and secure the 
blessings of liberty," in the place of the words, 
" for the government," &c. ; defining the business 
and duties of the government, instead of leaving 
" the government " undefined. This very formal 
list of the designs and purposes of the people, 
and the objects and duties of their government 
for accomplishing them, has not been found in 
combination anywhere else. 

§ 13. The leagues and confederacies among 
the colonies, or portions of them, adopted or 
proposed in the years 1643, 1754, 1775, and 
1781, being mere treaties between political 
bodies or governments, generally endeavored to 
provide for " union " and " defence ; " but, not 
being made by " the people " for their own bene- 
fit and government, said little about "welfiire," 
and less about " liberty," and nothing about 
"justice " or " tranquilUty." In this way the first 
sentence of the Constitution came into its pres- 
ent form. The substitution of this introductory 
and enacting clause, in the place of the titular 
prefix reported by the Committee of Detail, is a 
favorable specimen of the useful, beneficial, and 
liberal manner in which the duty of the Com- 
mittee of Revision, in relation to " style and 
arrangement," was understood and performed. 
The change was entire, and must be presumed 
to have been made on account, and for the sake, 
of the bearing and efiect it had on the charac- 
ter of the instrument in which it was inserted; 



38 THE GOVERNMENT. 

which was, of course, well understood by the 
committee. 

§ 14. First, It made " the peoj)le of the United 
States," as a nation, the sole party, and the 
enacting authority of this fundamental law; in- 
stead of the several State governments, or the 
people of the several "States, as distinct political 
bodies, as in the Confederation, in Mr. Pinckney's 
draft, and in the Constitution as reported by the 
Committee of Detail. This change has been 
represented as merely incidental, made only to 
accommodate another alteration, by which the 
Constitution was to go into operation when rati- 
fied by a part only of the States. Even if this 
were true, however, it would not alter the mean- 
ing or construction of the clause as it stands. 
It is an exact and plain declaration, that the in- 
strument when adopted, and however it may 
be adopted, is tlie law of the land where it is 
adopted, and the work of its people. But the 
idea on which the suggestion is made has no 
foundation in fact. Both the draft of Mr. Pinck- 
ney, and the Constitution as reported by the 
Committee of Detail, which followed it so ex- 
actly in this clause and so substantially and 
formally in many others, contemplated a govern- 
ment independent of the unanimous consent of 
all the States, as decidedly as did Mr. Hamilton's. 
One of the States was not even represented in 
the Convention; and nobody was so sanguine 
as to expect the unanimous concurrence of the 



THE GOVERNMENT. 39 

whole thirteen before the inauguration of the 
experiment, if at all. 

§ 15. Second, It siDeeified, under six heads, all 
the purposes and objects which the people re- 
quired to be accomplished by the administration 
and execution of their Constitution, covering- 
all the duties of the most perfect government 
for the nation; viz., "to form a more perfect 
union, establish justice, insure domestic tranquil- 
lity, provide for the common defence, promote 
the general welfare, and secure the blessings of 
liberty to ourselves and our posterity," — instead 
of saying, as in the former draft, "for the gov- 
ernment of ourselves and posterity," without 
indicating the principles and objects by which it 
was to be guided, and the ends it was required 
to accomplish. 

§ 16. Third, It " ordained and established this 
Constitution," including this introductory clause, 
making it a part of the supreme law of the land, 
instead of lea\nng it outside, as in the original 
draft, as a mere title or prefix to " the following 
Constitution," from which it was excluded. 

§ 17. Fourth, It was "for the United States 
of America," — the whole nation exclusively, — 
and not for sections, states, or any component 
parts of the nation particularly. All its powers 
were conferred by the people themselves, to be 
exercised on themselves, for their own purposes, 
by their own authority, by their own agents, and 
for their own benefit. 



40 THE GOVERNMENT. 

§ 18. In reference to the broad declaration of 
this substituted clause, that the purposes of the 
people embraced nothing less than the " common 
defence and general welfare," it may be useful 
to bear in mind a few dates. These familiar 
words found no place in any part of the Consti- 
tution till September the 4th, just eleven days 
before the final order for its engrossment as 
amended. They then stood at the head of the 
section devoted to certain powers of Congress, 
in this precise form and connection: "to lay 
and collect taxes, duties, imposts, and excises; 
to pay the debts, and provide for the common 
defence and general welfare of the United 
States; to regulate commerce," &c., &c. Four 
days afterwards, Sept. 8, all the Articles agreed 
upon went into the hands of the Committee of 
Revision for a new draft. In four days more, 
Sept. 12, that committee reported the revised 
draft, leaving the beginning of the 8th section 
precisely as above written, with the exception of 
inserting the power "to borrow money," &c., 
above the power " to regulate commerce," &c.,-^ 
and altering the introductory clause as it now 
stands. Both were agreed to by the convention, 
so far as appears, without objection. Though 
they passed without opposition, it is evident they 
did not pass sub silentio and without exami- 
nation, because the very minute criticism of 
striking out the sign of the infinitive mode (to) 

i See 2 Story's Com. 371, and Journal of the Convention. 



THE GOVERNMENT. 41 

before the words " establish justice," was adopted 
by a divided vote of eight States against two. 
]N^o other alteration in either was authorized by 
vote of the convention, before or after the en- 
grossment, except to amend the first clause, of the 
8th section by adding the words, " but all duties, 
imposts, and excises shall be uniform throughout 
the United States." This was done on the 14th, 
the day before the engrossment. 

§ 19. The clauses were not then numbered, as 
the}^ have since been without authority; but the 
first clause, as now numbered, was divided by 
a semicolon and a break between the words 
" excises " and " to pay," in the same manner 
that the whole is divided from the next, and all 
the other clauses are, and then were, separated 
from each other. This part of the Journal was 
so defectively kept originally, and so mutilated 
afterwards, as to make it unpossible to decide 
exactly what the vote was by which the last 
addition was made. Mr. Madison says the words 
"were unanimously annexed to the power of 
taxation."^ If he may be supposed to have 
been precisely correct in his language, the vote 
was to insert the addition at the end of the first 
line, after the word " excises," so as to make the 
first clause read, " to lay and collect taxes, duties, 
imposts, and excises; but all duties, imposts, 
and excises shall be uniform throughout the 
United States : " leaving the words " to pay 

1 See 3 Madison Papers, in loc. 



42 THE GOVERNMENT. 

the debts, and provide for the common defence 
and general welfare of the United States," to 
constitnte, as they did before, and as the words 
" to borrow money," &c., still do, a separate line 
or clause. JSTeither the words, the order, nor the 
punctuation were altered by any other vote of 
the convention; and it is perfectly manifest, 
from the promptness and unanimity with which 
it was made, without discussion or examination, 
that no thought was entertained of producing 
the least alteration in the force and effect of the 
clause as it stood before. If the addition w^as 
intentionally placed where it now stands, it in- 
volved the necessity of throwing the whole into 
one clause, as it now is; because the addition 
referred exclusively to the first line, and not at 
all to the second. In that case, the necessity, 
whether recognized by the convention or not, 
must govern the result. 

§ 20. In this manner, "the common defence 
and general welfare " came first into the Consti- 
tution, as a part of the power of Congress, in 
the 8th section, on the 4th of September; and 
w^ere afterwards re23eated by the Committee 
of Revision among the great purposes and 
avowed objects of the people in ordaining the 
Constitution, and establishing the governmental 
machinery by which they were to be accom- 
plished and executed. In both jdI^ccs and 
forms, they were unanimously accepted by the 
convention; and neither the printed Journal, 



THE GOVERNMENT. 43 

Madison Papers, nor tradition afford any evi- 
dence that they called forth a single disparaging 
remark, in regard to their snbstance or effect, 
from any member of the convention. In some 
of the State conventions, the words " We, the 
jjeople," — the effect of which seems to have 
been well imderstood, — were made the occasion 
of discnssing the great principle of a national 
Constitution, as distinguished from a Confedera- 
tion. This question having been thoroughly 
discussed, and early settled in the general con- 
vention, was not again referred to in the adojition 
of this introductory clause. IN^either was this 
clause discussed at all before the people. 

§ 21. The Constitution, from the beginning, 
was placed on the defensive. A few general 
principles being well understood and thoroughl}'' 
established, — such as the absolute necessity 
of union and government, &c., — it followed, of 
course, that the only j^lan proposed, or likely to 
be proposed, must be accepted, unless there were 
insuperable objections to it. The objections, 
therefore, became the prominent subjects of the 
discussion; and those parts of the Constitution 
which were overlooked by its opponents, or 
failed to encounter their maledictions, were 
neither developed nor expounded by its friends. 
This sentence was a mere substitute for one that 
never was adopted or intended to be in, or con- 
stitute a part of, the Constitution at all, and was 
not itself reported for a part of it till September 



44 THE GOVEENMENT. 

the 12th. It was then considered and amended 
on the 13th, hy striking ont two letters of no 
significance, and adopted iinanimonsly on the 
14th; and, on the 15th, the whole instrument 
had been re-examined, sentence b}^ sentence, 
discussed, altered, amended, and accepted in 
detail, and the whole work completed by Satur- 
day night, so as to be engrossed by Monday 
morning, when it was signed, and the conven- 
tion forthwith adjourned sme die. 

§ 22. Having thus escaped opposition in the 
convention, it excited little attention afterwards. 
Even the important fact that it was actually in 
the Constitution, and not left outside as its 
predecessors had been, and would become, if 
adopted, obligatory as a part of the supreme law 
of the land, does not appear ever to have been 
publicly alluded to by friend or foe. The able 
writers of the " Federalist," who made the fullest 
analysis of the Constitution, were always careful 
to remember, and uniformly cautious to perform, 
their duty as advocates. They never for a mo- 
ment lose sight of the well-known nature and 
popular character of all the objections against 
which they were called upon to defend the Con- 
stitution. Their work, like all others in favor 
of the Constitution, is studiously defensive, and 
definitively apologetic throughout, and never 
indulges in the discovery or development of 
any powers or capabilities which had not previ- 
ously been searched out, and made the occasion 



THE GOVERNMENT. 45 

of antagonistic discussion by its adversaries. 
Though the two jDrincipal authors of the work 
had been -members of the convention and of the 
Committee of Revision, by whom this final draft 
had been made, and this sentence placed as the 
chief corner-stone of the Constitution; yet only 
two instances have been noted, in the whole 
work, where even the existence of this enacting 
clause is alluded to, notwithstanding the intimate 
connection of both with the precise foi-m and 
peculiar manner in Avhich it was substituted for 
the original one of a totally diiferent character 
and purport. The first is in the 41st number, 
where Mr. Madison says, " Security against for- 
eign danger ... is an avowed and essential 
object of the American Union." That the 
" common defence " is an essential object and 
duty of the government, may be satisfactorily 
proved independently of this clause ; but, as it is 
nowhere else actually " avowed " as such by the 
American people, the allusion is evidently to 
the words of this clause. The other instance 
is in the 84th number, where Mr. Hamilton, 
after reciting, under quotation marks, " "We, 
the people of the United States, to secure the 
blessings of liberty to ourselves and our posteri- 
ty, do ordain this Constitution for the United 
States of America," sajs, " This is a better re- 
cognition of popular rights than volumes of 
those aphorisms which make the principal figure 
in several of our State Bills of Rights." These 



46 THE GOVEENMENT. 

two allusions, though the only ones of their 
authors to the first clause of the Constitation, 
are sufficient to evince their appreciation of the 
magnitude and importance of its contents in 
the general fabric of the government. 

§ 23. But it is always to be remembered, that 
the opinions and writings of individuals, com- 
mittees, or conventions are not the Constitu- 
tion. That was ordained and established by the 
people of the United States exclusively. What 
they meant and intended by it is the Constitu- 
tion, — the fundamental and supreme law of the 
land, and is to be ascertained only from them- 
selves, and by what they did; that is, by what 
they placed and left on record for the special 
purpose of making their meaning known. They 
meant exactly and only what they said ; or, what 
is the same thing so far as others are concerned, 
if they meant any thing different, it can never 
be legally proved or known by anybody. 



CHAPTER III. 

WE, THE PEOPLE. 

§ 24. Let us proceed to analyze this first or 
enacting clause. The first three words, "we, 
the people," announce the sole parties and 
agents by whom the law was ordained, and the 
authority and power on which it rests. The 
will of the people is the only source of human 
power, which neither invites nor admits of any 
vindication. All governments, however founded, 
ultimately resort to it for support, and must fail 
whenever they are repudiated by it. " Sover- 
eignty resides originally in the people," says 
Burlamaqui. " The sovereignty or sovereign 
power, in every state, resides ultimately in the 
body of the people " (Sharswood's " Black- 
stone ") . And Yattel says, sovereignty " is that 
public authority which commands in civil so- 
ciety. This authority belonged, originally and 
essentially, to the body of the society." Fraud 
or force, precedent or accident^ niay confer 
power, or sustain it for a season, under favorable 
circumstances, though established without right; 

[47] 



4:8 WE, THE PEOPLE. 

but, if not supp6rted by the physical power of 
the last resort, must ultimately yield, whenever 
the will and power of the people are brought 
authoritatively to bear against it. This is the 
only absolute and inalienable sovereignty, — 
the controlling power in the last resort, under 
whatever form of government. 

§ 25. The terms imply unity, — aggregate or 
corporate unity, — which, in the case of a whole 
people, is nationality. The unity or nationality 
of a whole people involves individuality, equality, 
and independence among the nations, and sover- 
eignty or uncontrollable power in the last resort 
among themselves. These first words of the 
Constitution, therefore, "we, the people," au- 
thoritatively assume the integrity or unity, the 
nationality, independence, and sovereignty of 
the people. These ideas were none of them 
thought to require either elucidation, exhibition, 
vindication, or even assertion; but are quietly 
assumed and acted upon, in the simple formu- 
lary, " we, the people," which includes them all. 

§ 26. The people, then, are a nation. They 
became such by separating themselves from the 
nationality of Great Britain, — first temporarily, 
in 1774, when they formed their Union, by 
which they became " one people," a body politic, 
though only for the single purpose of defending 
their rights and liberties, w^hich they hoped and 
expected would be speedily accomplished, and 
then their former position resumed; afterwards 



WE, THE PEOPLE. 49 

permanently, in 1776, by their Declaration of 
Independence, absolute and final. Under the 
former, they levied and carried on war; raised, 
equipped, and supported armies and navies; 
regulated commerce with foreign nations; sup- 
pressed among themselves the authority of the 
British crown and parliament; and performed 
many other acts of unequivocal nationality and 
sovereignt3\ By the Declaration of 1776, they 
confirmed their j^osition as " one people," united, 
independent, and sovereign, and rendered it per- 
petual and irrevocable; absolving themselves 
" from all allegiance to the British crown," and 
dissolving " all political connection between them 
and the State of Great Britam ; " and assmning 
" full power to levy war, conclude peace, contract 
alliances, establish commerce, and to do all other 
acts and things which independent States may 
of right do." Thus the " good people " became, 
by the formal act of their " Kepresentatives in 
Congress assembled," in the language of the 
Declaration, permanently " one people," a nation, 
" a free people," " independent," and, of course, 
sovereign. 

§ 27. The words, "we, the people," in the 
Constitution, re-affirm, in effect, all these par- 
ticulars in the Declaration, — union, nationality, 
independence, and sovereignty. They, however, 
necessarily suggest the question, Who are the 
people? who constitute the nation? who are 
the actual members of the body politic, its 

4 



50 WE, THE PEOPLE. 

component materials? Prior to 1774, they were 
all his Britannic Majesty's subjects, inhabiting a 
certain locality, claiming the rights of native- 
born subjects, and all the liberties of the British 
Constitution; and were professedly governed as 
such. For the avowed and sole, but as they 
supposed temporary, purpose of a mutual de- 
fence of those rights and liberties, they became, 
by their own act, the " United Colonies of Amer- 
ica." Under this organization and the authority 
of the Continental Congress, " the people " car- 
ried on a defensive war against the aggressions 
of Great Britain, and did all other necessary 
acts of independent nationality and sovereignty,^ 
till 1776. On the fourth day of July of that 
year, by the " Declaration of Independence," the 
" Delegates of the United Colonies, ... in the 
name and by the authority of the good people " 
thereof, became " the Representatives of the 
United States of America," and solemnly de- 
clared them to be "free and independent," and 
entitled to " do all acts and things " which other 
independent nations have a right to do; which 
necessarily includes all power, external and in- 
ternal, implied in the absolute sovereignty of 
nations. In this manner they assumed perma- 
nently an equal station among the nations of 
the earth. TKe several constituencies, in their 

1 Nov. 1, 1775, Congress "Eesolved that no produce of the United 
Colonies be exported . . . before the first day of March next, without the 
permissioa or order of this Congress." 



WE, THE PEOPLE. 51 

separate local organizations, had authorized their 
respective delegates to unite in this general Dec- 
laration ; ^ but none of them had ever intended to 
make, or attempt to maintain, such a declaration 
on their own individual account, or sought any 
independence of each other. They all united in 
this aggregate Declaration, " in the name of all 
the good people," of their independence of Great 
Britain, and all the world beside, but remained 
united among themselves ; and so became perma- 
nently a body politic, an aggregate nation, and 
the separate colonies thereby subordinate por- 
tions of the new American State, as they had 
been before of the " State of Great Britain." 

§ 28. JSTothing would appear more reasonable 
or certain than that, by this act, the whole na- 
tional sovereignty, the absolute right to govern 
in the last resort, the real succession to the 
British crown and government, descended and 
remained upon the people of the United States 
as a nation; and the component parts took and 
retained, as they had before, such subordinate 
position as suited the real sovereign to confer or 
acquiesce in. The separate colonies, or the indi- 
vidual states, do not speak, and are not men- 
tioned in the Declaration; nor is the Declaration 
signed by delegates from the separate colonies, 
representing local districts, and binding their 
local constituencies, but is signed first by the 
President, and then by all the members promis- 
cuously, in a mass, as the " Representatives of 

1 See note at the end of this chapter. 



52 WE, THE PEOPLE. ' 

the United States of America," — the nation, as 
they announce themselves to be in the body of 
the paper; and the whole people are uniformly 
represented as " one people " acting together as 
a body corporate, — a nation, a " free people," — 
whom the king is " unfit " to govern. They dis- 
solve their connection with Great Britain, and 
assert their "full power to levy war, conclude 
peace, contract alliances, establish commerce, 
and do all other acts and things which independ- 
ent states may of right do ; " which includes, of 
course, the establishment or continuance of sub- 
ordinate institutions, and whatever else the Brit- 
ish government had rightfully done, or any other 
legitimate government could so do. 

§ 29. This was not only the theory of our 
system from the beginning, but the practice was 
in conformity to it, as well before as after our 
national position became permanent by the De- 
claration of 1776. Our local governments were 
all of them formed and administered, after the 
renunciation of the king's authority, by the ex- 
press advice and sanction of the Congress, — 
first of the United Colonies, and then of the 
United States. Governments so formed could 
have no rightful power to act in derogation of 
the general sovereignty of the nation under 
which they were organized, any more than the 
present local governments could repudiate or 
counteract the Constitution and government of 
the United States, in subordination to which 



WE, THE PEOPLE. 53 

only do tliey exist as political bodies, as govern- 
ments, and by whose authority and power only 
they are sustained and defended.^ ISTevertheless 
they did so act, both under the Kevolutionary 
government and under the Confederation, till 
the general government was well-nigh extinct 
from its own weakness, and the Union itself was 
at the point of absolute and final dissolution, — 
as it has more recently been for a second time 
from a similar cause, and will be very likely to 
be again, if an independent right to govern is 
accorded to the pai'ts in opposition to the whole, 
instead of under and b}^ virtue of the supreme 
law of the land, and in subordination to the para- 
mount authority of the Constitution and laws 
of the United States. It was under such circum- 
stances that the nation felt itself called upon and 
compelled to renovate and cement anew the per- 
ishing bonds of their inestimable Union. 

§ 30. Who were " the people " at the time of 
the Declaration of Independence, was settled 
by act of the same Congress which made that 
Declaration. On the twenty-fourth day of June, 
1776, they resolved, " That all persons abiding 
within any of the United Colonies, and deriving 
protection from the laws of the same, owe alle- 
giance to the said laws, and are members of such 
colony." ^ That " all persons " means every- 

1 " As if the rod should shake itself against them that lift it up." 

2 The Resolution of Independence, in the form finally adopted and 
embraced in the Declaration, was first moved in Congress, June 7, 1776. 
It was taken up for consideration the next day, June 8, and referred to 



54 WE, THE PEOPLE. 

body, without distinction, requires no argument. 
That " abiding " here means permanently resid- 
ing or inhabiting, is evident from the different 
provision immediately following, which relates to 
persons " passing through, visiting, or making a 
temporary stay in any of said colonies." This 
must have operated as a comj^lete naturalization 
law for every person who then was, or after- 
wards became, an abiding resident of the coun- 
try, whether born within the king's allegiance, or 
an alien of foreign birth. It applied equally to 
subsequent as well as prior inhabitants, because 
the object was to hold all such persons to the 
penalties of violated allegiance, in case they 
proved unfaithful to the Union. Such, doubt- 
less, continued to be the law, until, under the 
Articles of Confederation, in 1781,-^ Congress 
practically relinquished their jurisdiction over 

a Committee of the Whole. June 10, it Avas discussed in committee, 
passed, and reported to the House, where the further consideration of it 
was postponed to July 1 ; but, by way of preparation for its passage in 
the House, it Avas resolved to appoint a committee to draft a Declaration 
in form, to accompany it when published to the world. This committee 
was appointed the next day, June 11, and reported their draft, June 28, 
to the House. July 1, the Resolution and Declaration were considered 
together in Committee of the Whole ; and debated and amended, day 
after day, till July 4, when they were finally reported to the House, 
agreed to, engrossed, and signed by the members. So that the Resolution 
of Citizenship, of June 24, was passed after the Resolution of Indepen- 
dence had been decided upon in Committee of the Whole, and was wait- 
ing the preparation of the formal Declaration for its final passage in the 
House. 

1 This Confederation was the work of the State governments ; and, 
while maintaining their own separate sovereignty and independence, 
they nominally delegated to the United States in Congress assembled 
the principal rights and duties of sovereignty, and, at the same time, 
denied them the requisite powers for executing it. 



WE, THE PEOPLE. 55 

the subject, and each "State made its own rules 
of naturahzation. How far this law was subse- 
quently altered in any of the States, before the 
jurisdiction was again restored to the United 
States by the Constitution of 1788, has not been 
ascertained; but, obviously, all who acquired citi- 
zenship under it before it was repealed in any 
State (if it ever was so), all who were admitted 
under State laws, and all who had acquired citi- 
zenship by birthright in the land,^ were members 
of the nation by and for whom the Constitution 
was made and adopted in 1788. It calls them 
repeatedly, " people of the United States," " peo- 
ple of the several States," "citizens of the United 
States," "inhabitants of a State," "citizens of 
difierent States," "citizens of each State," and 
" the people " generally, — meaning in every in- 
stance the same persons, who are called, in the 
Resolution of 1776, "members" of the body 
politic; and in the Constitution, Article I., Sec- 
tion 2, the "free j^ersons," and " all other persons 
except Indians not taxed," according to whose 
numbers the representatives and direct taxes are 
to be apportioned. 

§ 31. It was not the particular object of the 
Congress of 1776 to confer the rights of citi- 

1 "Every person born in the country is, at the moment of birth, 
prima facie a citizen ; and he wlio would deny it must take upon himself 
the burden of proving some great disfranchisement strong enough to 
override tlie ' natural-born ' rights as recognized by the Constitution in 
terms the most simple and comprehensive, and without any reference to 
race, color, or any other accidental circumstance." — Attorney-General 
Bates's Opinion on Citizenship, Nov. 29, 1862. 



5Q WE, THE PEOPLE. 

zenship, but it was their • object to declare who 
should be liable to its hurdens and duties; and, 
by doing the one, they incidentally did the other 
also, for the rights and duties must go together. 
So it was not the particular object of our Con- 
stitution (Section 2) to confer or to declare the 
right of citizenship; but it was their object to 
apportion the Representatives and direct taxes 
among the citizens, " the people of the several 
States," ..." according to their respective 
numbers." And, in deciding who should and 
who should not be enumerated in ascertaining 
those "numbers," it necessarily decided who 
were and who were not those citizens, — "the 
people of the several States." Individuals can- 
not be citizens and not citizens at the same time. 
If they are citizens for the purpose of ascertain- 
ing the rights and duties of others, they are 
equally so for the purpose of settling their own. 
People and citizens are synonymous, and include 
all the members of the body politic, the repre- 
sentative body of the nation, " the people of the 
several States." "Free persons" and "other 
persons " are all persons, whatever may be the 
meaning of the word "free." If anybody can 
be excluded from both classes, it must be done 
by some governing principle of law, of sufficient 
force and extent to limit and control the obvious 
universality of the words used. 

§ 32. It is said that aliens are excluded, be- 
cause that, being citizens and owing allegiance 



WE, THE PEOPLE. Sf 

to a foreign government, they cannot perform 
the incompatible duties of allegiance to this. 
Besides, the government, being republican, must 
necessarily be in the hands of the people exclu- 
sively; and any jDarticipation of unnaturalized 
aliens in the rights of representation and suf- 
frage would be inconsistent with the nature of 
the government. It is inconceivable that the 
American people should have intended to author- 
ize unnaturalized foreigners, in any way, to 
augment or influence the representative power 
of any portion of the people; and it is equally 
inconceivable that they should have intended, in 
this way, to naturalize all such, and confer on 
them the rights of citizens, seeing they have 
expressly provided another mode for the pur- 
pose. It is therefore probably true that aliens 
cannot be counted, either as " free persons " or 
" other persons," in apportioning Representatives 
to " the people of the several States." 

§ 33. It is also said that slaves are excluded, 
not because they do not belong here or do be- 
long anywhere else, but because they are them- 
selves j)ro2')erty, and not 'persons^ or capable of 
holding any j^ersonal right. Citizenship — mem- 
bership of the nation, the body politic, being a 
component part of the people — is a franchise, 
a right conferred and guarantied, by the very 
existence of the nation, on all who compose it. 
■ ■ Every citizen of the United States is a compo- 
nent member of the nation, with rights and 



58 WE, THE PEOPLE. 

duties, under the Constitution and laws of the 
United States, which cannot be destroyed or 
abridged by the laws of any particular State. 
The laws of the State, if they conflict with the 
laws of the nation, are of no force. ... A citi- 
zen of the United States, whether by birth or 
naturalization, holds his franchise by the laws of 
the United States, and above the control of any 
particular State. . . . "Whoever has that fran- 
chise is a whole citizen, and a citizen of the 
whole nation, and cannot be such citizen in one 
State, and not in another." ^ 

§ 34. The people of the United States, in 
making their Constitution, do not create or con- 
fer on themselves any new rights, but they 
expressly reserve all the rights they then held, 
except what were delegated for their ow^n bene- 
fit* and they particularly and expressly recog- 
nize and perpetuate many natural and civil 
common-law rights, which, of course, are placed 
beyond the reach of any subordinate govern- 
ment, and even of their own. Among these are 
the following : — 

1. The right to be, what they call themselves, 
" the people of the United States," citizens, and 
component members of the body politic, — the 
nation; and to participate in all the privileges, 
immunities, and benefits the Constitution was 
designed to obtain or secure for all the Ameri- 
can people, especially the right to be protected 

1 Attorney-General Bates's Opinion on Citizenship, Nov. 29, 1862. 



WE, THE PEOPLE. 59 

and governed according to the j^rovisions of the 
Constitution. 

2. A right to the privileges and immunities 
of citizens in any of the several States. Among 
these is the fundamental and elementary right 
of suffrage. The Re2)resentatives to the national 
and State legislatures must be chosen by the 
people, the citizens (Section 2) . Consequently, 
the citizens must choose them, and have a right 
to choose them. 

3. A right to the common-law writ of habeas 
corpus, to protect the other common-law right, 
as well as natural and constitutional right, of 
personal liberty. 

4. A right to trial by jury in any criminal 
case. 

5. A right to keep and bear arms. 

6. A right to life, liberty, and property, unless 
deprived by due process of law. 

7. A right to just compensation for private 
property legally taken for public use. 

8. A right to participate in all rights retained 
by, or reserved to, the people. 

Most of these rights, with many others, belong 
by the Constitution not only to the citizens, — 
the people of the United States, strictly so 
called, by reason of the franchise of natural birth 
or otherwise, — but also to all persons who may 
be allowed to be and remain under the jurisdic- 
tion and protection of our government.* These 
are a part only of the rights held by every 



60 WE, THE PEOPLE. 

member of the nation, under and by virtue of 
the Constitution of the United States, independ- 
ent of any other earthly power, and which, of 
course, " cannot be destroyed or abridged by the 
laws of any particular State." "Who, then, in 
the United States is destitute of rights? 

§ 35. A slave, being property, and incapable of 
holding any right, cannot, of course, be a citizen; 
because the franchise itself is incompatible with 
his condition, and, if he could hold it, would 
contradict his status as a slave. Slaves, there- 
fore, cannot be citizens. The moment slaves or 
aliens are included in the catalogue of "people 
of the several States," and counted as a part of 
them, either as units or fractions, they become 
a part of the people, — citizens, and, of course 
are absolved from all the disabilities of alienage 
or slavery. 

§ 36. But before .any can be excluded on 
the ground of slavery, it must be shown that 
such a class, by virtue of constitutional laws, 
existed in 1788, and how it was composed, and 
that its continued existence since, under the 
Constitution of the United States, is compatible 
with its provisions, and how and by whom the 
class is now constituted.^ As to aliens there 
can be no doubt; nor can it be doubted whether 
the people intended to naturalize them all in a 
body, by classing them with the citizens, and 

1 Since ttie adoption of the 13tli Amendment, in 1865, of course no 
such question can arise. 



WE, THE PEOPLE. 61 

reckoning them in the ennmeration of the repre- 
sentative popnlation, because they have made an 
express provision for doing it otherwise. The 
fact that none have ever been excluded from the 
enumeration by law, on the ground of slavery 
or being property, proves one of two things, — 
either that those called by that name never were 
rightfully and constitutionally property at all, 
but 2?ersons, as the Constitution calls them; or 
that, by being counted and reckoned according 
to law among " the people of the several States," 
— the citizens, — they are absolved from their 
former status, and made j^e^'sons, equal as citizens 
with the others, among whom they are classed 
and counted in the enumeration of " the people 
of the several States." 

§ 37. Besides aliens and slaves, who are neces- 
sarily excluded for want of franchise or right, 
"Indians not taxed" are excluded by express 
jDrovision ; because, belonging to their own native 
tribes, governed by their own ancient usages 
and laws, and not accepting our civilization or 
allegiance to our government, though within its 
jurisdiction and in some respects under its pro- 
tection, it was thought right that they should 
not be subjected to the burdens and duties of 
membership of the nation, nor, of course, en- 
titled to its rights and privileges. Being native- 
born inhabitants of the land, and as such having 
the best possible franchise therein, they must 
necessarily have been included in any proper 



62 WE, THE PEOPLE, 

description of the people or citizens of the coun- 
try, had it not been for the express exchision. 

§ 38. These are all the exclusions, express or 
implied. Origin, caste, color, descent, or any 
other distinction among men, has no effect here. 
Descendants of Euroj)eans and Africans stand 
on equal ground; and those of Englishmen, 
Irishmen, Frenchmen, Dutchmen, Ethiopians, 
and Canadians, are all dealt with alike. If 
born or naturalized here, they are citizens; 
otherwise, they are aliens. The mode of classi- 
fying and counting them, under different names, 
and some as units and others as fractions, has 
no more effect on their natural rights, or on 
their civil, social, or political status, than it would 
to classify them as men, women, and children; 
counting the first as units, and the second and 
third two or three for one. They must all still 
be citizens; for they form a part of the repre- 
sentative body of "the people of the several 
States." The "people of the United States," 
therefore, are everybody belonging to the coun- 
try, — that is, having a franchise, a right, as 
members of the body politic, — " free persons " 
and " all other persons," Indians only being 
specially excepted. 

Note referred to, p. 51, ante. — Tlie resolutions of the town of Maiden, 
Mass., as copied in 2 Marshall's " Washington," 408, are a specimen of 
the action of the people on this subject. After saying what had been 
their feelings regarding their connection with Great Britain, they pro- 
ceed, "But our sentiments are altered. It is now the ardent wish of our 
souls, that America may become a free and independent state." 



CHAP TEE TV. 



THE UNITED STATES. 



§ 39. The next words in the enacting clause 
of the Constitution are "the United States." 
They are used twice in this short sentence, with, 
the words " of America " superadded in the last 
instance. They are the corporate name of the 
nation, and the local name of the country. As 
Great Britain forms the name of the kingdom 
and that of its principal island, and Russia the 
name of the empire and of the country over 
which it extends; so the United States is the 
name of the body politic, the nation, and of 
the country it occupies, and over which its gov- 
ernment extends. The same name is used in 
the Declaration of Independence, as it is in this 
part of the Constitution, without any intimation 
how or of what it is composed, or that it includes 
a series of subordinate States or any other sub- 
divisions. The assertion is, that the United 
States, the nation, the people occupying and 
controlling this land wherein we dwell, do, in 
their aggregate and corporate character, enact 

[63] 



64 THE UNITED STATES. 

this fundamental law for the government of the 
United States; the nation, the country, ourselves 
and our successors, being the owners and occu- 
pants of this good land. 

§ 40. The emphatic idea is, that the Constitu- 
tion was made for the nation, the whole nation, 
including all its parts; and not for the parts, 
combining them into a whole, — for the people, 
collectively and individually, in all their capa- 
cities and relations, whether personal, political, 
social, corporate, or otherwise. It is the Consti- 
tution for the whole; the fundamental and su- 
preme law of the land. Individuals, societies, and 
corporations — commercial, political, and local — 
exist under it as they existed before it; but they 
are all subject to it, and dependent upon it for 
the protection of their natural rights and the 
foundation of their political rights. Though 
their political rights, in the form then legall}^ 
approved, were, like their natural rights, anterior 
to the Constitution, yet, when that was adopted, 
it became paramount to, and the legal measure 
of, them all; and the local Constitutions and 
laws were to be construed and restricted by this 
supreme law. Any thing in any of them incon- 
sistent with it was void. The present State 
constitutions were all made, or revised and re- 
enacted, under it, and designed, or should have 
been, to conform to it; but at any rate must be 
judged by it, and cannot counteract it. " The 
idea of a national government involves in it not 



THE UNITED STATES. 65 

only an authority over individual citizens, but an 
indefinite supremacy over all persons and things, 
so far as they are objects of lawful government." 
..." In some instances . . . the power of the 
new government will act on the States in their 
collective characters." Local governments are 
not only useful and most valuable as schools of 
rejDublican institutions and otherwise, but they 
are absolutely indispensable, and must have been 
instituted by the government, if not already 
provided. The national government could not 
get along without them. Mr. Madison says, " If 
they were abolished, the general government 
would be compelled, by the principle of self- 
preservation, to re-instate them in their proper 
jurisdiction; " or, he should have added, on the 
same principle of self-preservation, provide a 
substitute : either of which would be justified 
and required by it. All controversies respecting 
the jurisdiction of such subordinate govern- 
ments must be ultimately decided by a " tribunal 
... to be established under the general govern- 
ment, . . . according to the rules of the Con- 
stitution," and acting under its laws.^ 

§ 41. It would have been impossible for any 
central government to manage all the minute 
interests of every petty locality in a great coun- 
try. As such governments were necessary in 
some form, and as these were already formed, 
what could be more natural or desirable than 

1 Madison. — See Federalist, Nos. 14, 39, and 40. 
6 



66 THE UNITED STATES. 

to recognize and continue and guarantee the 
perpetual republican character of those organ- 
izations? Such constitutional recognition and 
consequent perpetuation of the existing divisions 
may have been hazardous, and liable to much 
doubt on the score of expediency; and accord- 
ingly we find that some of the most sagacious 
men in the convention were very desirous and 
sought diligently to avoid it : and our recent his- 
tory has abundantly confirmed the sound wisdom 
and foresight which occasioned their fears and 
anxieties on the subject. It is still the most vul- 
nerable part of our system; but its apprehended 
evils can best be guarded against by a liberal 
use of the actual powers and jurisdiction of the 
general government, attended^ as it necessarily 
would be, by a corresponding diminution of 
the power and patronage, the expense and influ- 
ence, of the subordinate local administrations. 
The Constitution gives them no power, and 
reserves none to them, and leaves nothing for 
their own people to give them, but such as the 
nation, " the people of the United States," have 
not delegated to their own government. The 
Constitution subjects the States politically (as 
bodies politic), and their officers officially (in 
their official capacity), as well as individuals 
personally, to divers important duties, which, of 
course, they are respectively authorized to per- 
form; and the performance must be enforced, 
peaceably or forcibly, like all other lawful duties. 



THE UNITED STATES. 67 

by the power which the nation has made respon- 
sible for the execution of all the laws. 

§ 42. In a few instances it authorizes State 
action, with the consent, or subject to the ulti- 
mate control, of Congress; but of an independent 
right to govern in the last resort, which is 
supreme power, either local or general, the Con- 
stitution confers or recognizes none, in the State 
governments or anywhere else, except in the 
people and in the Constitution and laws of 
the United States, which are the only supreme 
law of the land. It really resei^ves nothing to 
them expressly of the power they before pos- 
sessed, but the right to appoint the officers of 
the militia, and to train them according to the 
discipline adopted by Congress. No other 
power of final local administration was either 
given or continued, by express provision, to the 
States. The question in regard to State rights, 
which always mean State independence and 
State sovereignty, is between subordinate and 
co-ordinate governments, — whether the States, 
being within and parts of the United States, 
hold their separate political existence and powers 
by virtue of the Constitution and in subordina- 
tion to its provisions, and of course bound to 
conform to it and sustain it; or whether they 
hold by sovereign right, above or co-ordinate 
with and independent of the Constitution, and 
of course authorized to act against it. In 
strictness, nothing is "reserved," or could be 



68 ' THE UNITED STATES. 

"reserved" to the State governments that is 
entirely given away, " delegated," to the general 
government. This strictness would place a load 
Tipon the general government that they conld 
not carry; and, of course, the construction has 
been to " leave " ( " leave " is the word studiously 
used by the fathers of our government) the 
States to exercise such powers as are not pro- 
hibited to them, and which the general govern- 
ment, though authorized, decline or omit, for the 
time being, to exercise. It is on this principle 
that the States have been allowed, " left," to do 
many things that the general government might 
and perhaps should have done, and from which, 
if they had legislated, being the supreme power, 
the States would have been excluded. Where 
the United States have the right to legislate, 
they have also the right to exclude all interfering 
legislation. 

§ 43. The powers not delegated to the general 
government, nor prohibited to the States, are 
reserved to the States or to the people. In 
the 10th Amendment, the words "States" and 
"United States " mean their governments respec- 
tively, as then organized : the people are the 
active governing power, the nation. "What they 
then had, the State governments could continue 
to hold, under this reservation, as long as they 
retained their identity. But other States, or 
other governments in those States, could claim 
nothing under this clause. When the govern- 



THE UNITED STATES. • 69 

ments to whom this reservation was made were 
dissolved, and new ones had to be formed, the 
peoi3le who formed them could grant them 
nothing* but what they then possessed, which 
certainly did not include any thing they had pre- 
viously delegated to the general government. 
The people who had made the original State 
Constitutions could alter or supersede them, in 
whole or in part, as they pleased. By making 
the Constitution of the United States, which was 
done not only by the whole people of the United 
States, but by the majority of the people of each 
State also, they altered every State Constitution 
so far as to make it conform to the United-States 
Constitution, which they ordained to be the 
supreme or paramount law. What the whole 
nation had thus delegated to the general gov- 
ernment, no particular State could re-grant to 
anybody, because it was no longer theirs to 
give. What was not granted to the general 
government remained with the grantees, the 
whole people of the nation, on general princi- 
ples, as well as by the 10th Amendment; and 
this applied to what had been reserved to the 
original State governments as then organized, 
as soon as those governments were dissolved, 
whether new ones were organized in their place 
or not. 

§ 44. But there is another principle available 
to any individual, or to any legally authorized 
association of individuals. Whatever violates 



70 • THE UNITED STATES. 

no law may be done according to law. Though 
the government may have ample power to regu- 
late a subject m every minute particular, yet, if 
it makes no rule, every man is left to make one 
for himself, or to agree upon one with his neigh- 
bors, either in the form of State laws or other- 
wise. So it has been decided by the Supreme 
Court, that, although Congress has the entire 
power over "the subject of bankruptcies," yet, 
as long as they neglect to make any law on the 
, subject. State laws in regard to it may be con- 
stitutionally executed, notwithstanding it is not 
a reserved power, but a positively delegated 
power, which, in its nature, must be exclusive; 
for a power cannot both be given away and 
retained at the same time. A special power 
may be reserved out of a general grant that 
would otherwise include it; but, in that case, 
the special power is excepted from the general 
grant, and never was granted. 

§ 45. The effect of this principle is to allow 
the State governments to make what regulations 
they please, authorized by their own Constitu- 
tions, — provided they are compatible, and not 
inconsistent, with the Constitution and laws of 
the United States. The same is true whatever 
may be the extent of the powers of the govern- 
ment. If they may " promote . the general wel- 
fare," and have plenary power and universal 
jurisdiction to regulate and command any thing 
and every thing that any legitimate government 



THE UNITED STATES. 71 

could rightfully do; still, if they neglect any 
subject of which the State governments are not 
expressly or imj^liedly denied the cognizance, 
what but their own Constitutions can interfere 
with their action? The States, as well as indi- 
viduals, have a constitutional existence, and a 
right to make laws as a government; and, of 
course, may make any laws that their own 
people, by their Constitution, authorize, — pro- 
vided they do not contravene the Constitution 
of the United States, or any law made in virtue 
of it. This is the precise relation in ■ which 
the States stand to the nation, the subordinate 
divisions to the whole. "Whatever the Constitu- 
tion and government of the United States law- 
fully enjoin is supreme law. "Whatever the State 
governments do in contravention of it, or incom- 
patible with it, is void; and what they do in 
accordance with it, if authorized by their own 
people, is constitutional and valid. 

§ 46. But the idea that the Constitution or 
the people of the United States have ajjpropri- 
ated any particular dej^artment of government, 
or any particular class of subjects, to the exclu- 
sive action and sole management of the local 
authorities, is entirely groundless. It organizes 
a government for the United States, the whole 
nation, and all its interests and people, individ- 
ual and corporate, and makes it supreme over 
the whole land. Whatever this government 
cannot do or will not do, others may do if 



72 THE UNITED STATES. 

unrestrained by national or State constitutions, 
or it may remain undone; but neither the local 
governments nor individuals can do any thing 
to obstruct, retard, or in any way counteract, 
the proceedings of the general government. 

§ 4l7. a Constitution for the United States is 
a fundamental law for the whole country; and, 
if it is adequate to the exigencies of govern- 
ment, it is competent to all the purposes for 
which a good government is ever wanted. The 
efficiency of the government is all derived from 
the Constitution, and is equal in all places 
within the limits of the United States.^ All its 
power is derived from the Constitution, and 
must be exercised in conformity to its grants 
and within its restrictions. It is not different 
in kind, or greater or less in degree, in one 
place than it is in another. It is supreme every- 
where. It is exclusive where there is no subor- 
dinate government, and it is inclusive where 
there is one. It is temporarily exclusive where 
there may be another, till such a one is rightfully 
instituted; and it is permanently exclusive where 

1 " Does this term [the United States] designate the whole, or any 
particular portion, of the American empire 1 Certainly this question can 
admit of but one answer. It is the name given to our great republic, 
which is composed of States and Territories. The District of Columbia, 
or the territory west of the Missouri, is not less within the United States 
than Maryland or Pennsylvania." — By the Court, Marshall, C. J., in 
Loughborough v. Blake, 5 Wheat. E. 319. 

" The exigencies of government " are all the exigencies of any gov- 
ernment, — all the purposes for which government is instituted. A 
government adequate to these is a full and perfect government, whether 
with or without subordinates. 



THE UNITED STATES. 73 

there can be no other. If a rightful subordinate 
becomes extinct, whether by right or by wrong, 
the general government again becomes exclusive 
till a new subordinate may rightfully resume the 
place. 



CHAPTEE Y. 



THE ENACTMENT. 



§ 48. The Constitution having thus described 
the agent, the people, the power that acts in this 
matter; and the nation, the United States, the 
l^eople themselves in fact, on whose account, and 
for whose benefit they act, — it is proper that we 
next consider the authoritative action itself, which 
is there expressed by the words " ordain and es- 
tablish." These words are of commanding or 
law-giving force, — mandatory in their nature. 
Under the Confederation, the Acts of Congress 
were styled " ordinances." The words are used in 
the Constitution, in other instances, in the same 
sense. They mean to legislate, enact, or decree. 
Congress, the legislative or law-making power 
under the Constitution, may "establish" rules 
and laws, post-offices and post-roads, by making 
or enacting laws, not otherwise. Offices are to 
be " established " by law. They may " constitute 
tribunals "in the same way; which is the same 
power given in another place, to " ordain and es- 
tablish'' courts. All these are done by enacting 

[74] 



THE ENACTMENT. 75 

laws. So the people, having the sole and abso- 
lute right and power to prescribe the rule and 
govern the land, " ordain and establish," enact 
and decree, and givo authority and perpetuity to 
this fundamental and supremo law. When it is 
thus " ordained," it has all the force and efficacy 
which such ultimate right and power can confer, 
without appeal or other resort."* "When it is 
" established " in the same manner, it is as per- 
manently fixed and settled as human power can 
make it. So the " Constitution of the United 
States," with its avowed purposes and objects, 
is the " supreme law " of the nation, adequate- 
ly enjoined and " ordained," and permanently 
" established " by the " people " thereof. Esto 
2^erpetua. 

THIS CONSTITUTION. 

§ 49. After the action comes the subject-mat- 
ter, the thing done, — "this Constitution," with 
its character and purposes. The word "this" 
makes it perfectly definite and inclusive. We 
have already noticed, that it is not, as in the 
original draft, "the following Constitution," or 
" a Constitution in manner and form following," 
thus excluding this enacting clause. But it is 
" this," — ijjsissiinus, — this whole instrument 
definitely, including this governing clause and all 
the rest. The entire instrument and all its parts 
is " this Constitution." A Constitution is a fun- 
damental law, constituting, or instituting and 



76 THIS CONSTITUTION. 

establishing, an authority or agency for the ac- 
compUshment of certain specified purposes. What 
does "this Constitution for the United States" 
do ? Certainly it constitutes, or it institutes and 
establishes, an authority or agency for the ex- 
press purpose, or " in order to" accomplish certain 
specified things. These things are the regular 
business, the appropriate duties, of a government, 
— "a firm national government, . . . adequate to 
the exigencies of government and the preserva- 
tion of the Union." They are what nothing but 
a government can do. " They comprise," said 
Chief Justice Jay, " every thing requisite, with 
the blessing of divine providence, to render a 
people prosperous and happy;" and include all 
that any legitimate government can be required, 
or ought to be expected, to do. The authority 
and agency so established is therefore proved to 
be a government, by the subjects and duties as- 
signed to it. They are all in the line of the 
duties of a government exclusively, require the 
supreme power and authority of a government, 
and involve the necessity of a perfect and entire 
government, co-extensive with the expressed 
purposes and designs. 

. § 50. When the American ]3eople expressly 
avow such designs, as their true intention in the 
establishment of their government, and authori- 
tatively ordain and establish it on that account 
and for that purpose, they most imperatively 
prescribe the duty of that government to pur- 



THIS CONSTITUTION. 77 

sue and promote them. The prescribed duty of 
the government is the measure and end of their 
power. These objects and purposes, as here 
specified, are a mere paraphrase or substitute for 
the words used by Congress in calHng the con- 
vention to form a " firm national government, . . . 
adequate to the exigencies of government and 
the preservation of the Union." Again, that the 
" Constitution " was designed to be a constitu- 
tion of government for the United States, is 
manifest from the fact, that in the sequel they 
proceed to organize such a government, in 
detail, dividing it into appropriate departments, 
and assigning to each such jDortion of the duties 
of such a government as properly come within 
its sphere. Besides, the agency thus " ordained 
and established " by the " people of the United 
States " is repeatedly called, in divers places on 
the face of the instrument, " the government of 
the United States," in express terms.^ 

1 Chief Justice Ellsworth said, in the Connecticut convention (2 El- 
liot, 190) : " The Constitution is a complete system of legislative, judicial, 
and executive power ; . . . and it will be found calculated to answer the 
purposes for which it was designed." 

Washington wrote, Feb. 7, 1788 : " With regard to the two great 
points, the pivots on which the whole machine must move, my creed is 
simply, — First, that the general government is not invested with more 
powers than are indispensably necessary to perform the functions of 
good government ; and, consequently, that no objection ought to be made 
against the quantity of power delegated to it. Secondly, that these 
powers, as the appointment of all rulers will for ever arise from, and at 
short, stated intervals recur to, the free suffrages of the people, are so dis- 
tributed among the legislative, executive, and judicial branches into which 
tlie general government is arranged, that it can never be in danger of 
degenerating into a monarchy or oligarchy, or any other despotic or 
oppressive form, so long as there shall remain any virtue in the body 



78 THIS CONSTITUTION. 

§ 51. A Constitution made, ordained, and es- 
tablished for such purposes, and expressly " in 
order to " accomplish them, must therefore be a 
constitution of government " for the United 
States of America," with the duty, and of 
course the necessary right and power, " to form 
a more perfect Union, establish justice, insure 
domestic tranquillity, provide for the common 
defence, promote the general welfare, and secure 
the blessings of liberty." These are the express 
purposes, and the only purposes, for which it 
was made.^ The ordinance of the American 
people is the law, the paramount law. The law 
imposes the duty, and the duty carries with it 
the power. Here, in this enacting clause, is the 
epitome and essence of the whole Constitution. 
Had it ended here, nothing would have been 
wanting but the details, specifications, limitations, 
and qualifications which the government itself 
could have supplied, if the people had seen fit to 
omit doing it for them. " There can be no 
doubt," says Mr. Madison, " that all the particu- 
lar powers, requisite as means of executing the 

of the people. ... I will only say, as a further opinion founded on the 
maturest deliberation, that there is no alternative, no hope of alteration, 
no intermediate resting-place, between the adoption of this, and a recur- 
rence to an unqualified state of anarchy, with all its deplorable conse- 
quences." — Writings, ix. 318. 

Chief Justice Jay, in his address to the people of New York, in 1788, 
said : " A national government, competent to every national object, was 
indispensably necessary." — 1 Elliot's Debates, 496. 

1 In Cohens v. Virginia, 6 Wheat. E. 264, the Supreme Court, by 
Marshall, C. J., call "the powers confided to the Supreme Government, 
for these interesting purposes, ample ; " that is, sufficient for them all. 



THIS CONSTITUTION. 79 

general powers, would have resulted to the 
government, by unavoidable implication. ^N^o 
axiom is more clearly established in law or in 
reason, than that, whenever the end is required, 
the means are authorized; wherever a general 
power to do a thing is given, every particular 
power necessary for doing it is included." ^ 

§ 52. By authoritatively prescribing the pur- 
poses and objects to be accomplished, it regulates 
the magnitude and extent of the powers to be 
ai^plied to them. The end and the means must 
be commensurate. If the government was 
actually formed for certain specified purposes, 
then the people, who formed it, required those 
purposes to be accomplished by it. They have 
appointed no other agent. If the government 
have no right to accomplish them, it is because 
the people had no intention that they should be 
accomplished. The assertion to the contrary is 
only a false pretence. To say that it was the 
express purpose of the people that a thing 
should be done, and yet that the government 
have no jDOwer to do it, is therefore a contradic- 
tion in terms. " The means," says Alexander 
Hamilton, " ought to be proportioned to the end ; 
the persons from whose agency the attainment 
of any end is expected ought to possess the 
means by which it is to be attained." ^ It will 
not ansAver to represent the American people 
as guilty of the gross absurdity of saying, " We 

1 Federalist, No. 44. 2 Federalist, No. 23. 



80 THIS CONSTITUTION. 

ordain and establish this Constitution, in order 
to form a more perfect Union, estabhsh justice, 
insure domestic tranquilUty, provide for the com- 
mon defence, promote the general welfare, and 
secure the blessings of liberty to ourselves and 
our posterity, — meaning and intending thereby, 
that the government hereby created shall have 
mo right to do any one of these things, unless 
a special power is hereinafter specifically dele- 
gated to some particular department, for each 
particular purpose." Yet this is substantially 
what has been often contended for. 

§ 53. The expression of a particular ])ur'pose 
or object, in an act done or to be done, is not an 
unusual form, in our Constitution, of conferring 
a right or imposing a duty to accomplish that 
purpose. In the 8th section of Article I., the 
militia may be called forth, for the purpose, in 
order " to execute the laws of the Union, sup- 
press insurrections, and repel invasions." Here 
is not only the power and duty to do these 
things, but the means by which they may be 
done. That the government is bound " to exe- 
cute the laws, suppress insurrections, and repel 
invasions," and that, in the discretion of Con- 
gress, the militia may be used for the purpose, 
is here distinctly asserted. But, as the militia is 
the only means suggested and expressly placed 
at the disposal of the government for effecting 
these important objects, the doubt would seem 
to be, whether the government would have a 



THIS CONSTITUTION. 81 

right to accomplish either of them in any other 
way, or to make use of any other means for the 
purpose. This doubt, I beUeve, never was ex- 
l^ressed, and it is not hkely that it ever will be. 

§ 54. Mr. Jefferson construes the second line 
in the same section in the same manner, as a 
mere qualification of the power of taxation; in 
which he is undoubtedly right, unless " to pay 
the debts, and provide for the common defence 
and general welfare," are distinct substantive 
powers, which will be considered in another 
place. He says:^ "To lay taxes to provide for 
the general welfare of the United States, is to 
lay taxes for the j^y^^^l^ose of providing for the 
general welfare. Congress are not to lay taxes 
ad libitum, for any purpose they please, but only 
to pay the debts or provide for the welfare of 
the United States." But they may lay them for 
these purposes, or either of them, and apply 
them to the purpose. They cannot lay them for 
any other pm^poses, because there are none. 
These, and indeed "the common defence and 
general welfare," alone include every j)urpose 
for which the government, or any government, 
ever was instituted. The only doubt would seem 
to be, as in the other case, whether they are at 
liberty to accomplish the purposes by any other 
means than taxation. This doubt has been 
practically solved by the whole history of the 
government. Debts have been paid, and are 

1 Opinion on the Bank of the United States, Feb. 15, 1794. 
6 



82 THIS CONSTITUTION. 

still, by all the means by which the treasury is 
from time to time replenished, including bor- 
rowed money, and fines and forfeitures of crimi- 
nals, much more than revenue from taxation. If 
other means than taxation had not been used 
for the " common defence and- general welfare " 
during the late rebellion, the country would have 
found itself in a very different predicament from 
what it is to-day. 

§ 55. Mr. Hamilton, in his Report on Manu- 
factures, in 1791, said that the power to effect 
these objects by taxation, which was " granted 
in express terms," would not carry with it a 
power to do the same by any other means " not 
authorized in the Constitution." This implies 
that they might do it by any means which the 
Constitution places at their disposal; and, as this 
includes all the means " necessary and pro23er " 
for the purpose, it would be sufficiently exten- 
sive: and the practice of the government has 
been in conformity to it. 

§ 56. By another clause in the same section. 
Congress is authorized " to promote the progress 
of science," &c., by granting patent rights. In 
other words, they may secure "to authors and 
inventors the exclusive right to their respective 
writings and discoveries," for the purpose, or in 
order, "to promote the progress of science and 
the useful arts." Qucere, may they not promote 
the progress of science by other means than 
patent-rights? and may they not grant patent- 



THIS CONSTITUTION. 83 

rights for other purposes than the promotion of 
science? It is beheved that the government 
patronizes and promotes the j)i'ogress of science 
and the useful arts much more efficiently and 
eifectually, eveiy day, by other means and mea- 
sures under its control, than by their patent laws ; 
and that their patent laws are made quite as 
efficient aud effectual to replenish their library 
with books, their patent-office with curiosities, 
and their treasury with funds, as they are to pro- 
mote the progress of science and the useful arts. 
At least, there is nothing in the Constitution to 
prevent their doing so if they please. Other 
clauses, of an analogous nature and in similar 
form, are contained in the Constitution; either 
ordaining means adapted to a particular object, 
or prescribing an object to be obtained by parti- 
ticular means. In which cases the end as well 
as the means, and the means as well as the end, 
are among " the powers vested by this Consti- 
tution in the government," and of course to be 
executed by any " laws necessary and proper " 
for the purpose. 

§ 57. The Constitution is of the same charac- 
ter. This fundamental laAV was " ordained and 
established" for certain specified purposes, ex- 
pressed on its face. The law and the purposes 
are parts of the same instrument, and together 
constitute the instrument. The government is 
the sole agent of the people for executing it; and 
is bound to execute it, and all and every part of it, 



84 THIS CONSTITUTION. 

by the use of all the power placed at its disposal. 
The thing done, or to be done, and the end or 
purpose for which it is done, the means and the 
end, are both law, and must be executed as such. 
Any other construction would emasculate the 
Constitution, and cripple the government. It 
would deprive it of its adequacy to the exigen- 
cies thereof, and of its competence to execute 
and administer the supreme law or govern the 
country. If the people intended, as they say, 
that the " blessings of liberty " should be secured 
by the Constitution, they intended that the gov- 
ernment they created " in order " to do it, should 
do it. If they did not intend the government 
should do it, they did not intend it should be 
done by the Constitution. 

§ 58. The attempt to reduce the Constitution 
to such a condition of imbecility, and to induce 
a belief that such was its true character, has 
rested, in great measure, on the success of an 
effort to place this introductory or enacting 
clause entirely outside of the instrument. This 
effort has been made principally, and it may be 
said exclusively, by giving it a bad name. Un- 
fortunately, the Constitution itself gives it no 
name. This circumstance has afforded great 
facility to those interested, to aflSx a euphonious 
name well calculated to answer their purpose. 
They have studiously called it a Preamble, and 
under that misnomer it has been generally cited. 
But the Constitution does not call it so, nor is it 



THIS CONSTITUTION. 85 

SO in fact. It has none of the characteristics, 
and answers none of the purposes, of a pream- 
ble ; nor has it any resembhmce to one, either in 
form or substance. 

§ 59. The preamble to a statute, in the order 
of its arrangement, comes before the statute, — 
that is, before the mandatory part, or actual 
enactment, of which it constitutes no portion. 
A jpre-anible, ivallc-before the law, is not in the 
law; forms no part of its mandate, or authorita- 
tive requirement. Its substance consists of a 
rehearsal of facts or reasonings, by way of in- 
ducement, supposed to show the fitness or pro- 
priety of the subsequent enactment. In form, it 
begins with a " Avhereas," and, after stating the 
matter of inducement, ends with " therefore," fol- 
lowed by the mandate, the law, " Be it enacted," 
&c. ; as, " "Whereas A, B, and C have humbly 
petitioned us to grant them leave, at their own 
proper cost and charges, to construct certain 
highly necessary and important public works, as 
hereinafter mentioned, entirely for the use and 
benefit of the public, and without any prospect, 
expectation, or even hope, of realizing the least 
benefit or advantage therefrom themselves; 
which humble request appearing to be just and 
reasonable; Therefore," be it, &;c. This is just 
what the introductory clause of the Constitution 
is not. Here is no rehearsal by way of induce- 
ment, no manuduction, no " whereas," and no 
corollary requiring a subsequent command, 



86 THIS CONSTITUTION. 

nothing preceding the supreme authority and the 
mandatory words : simply a naked ordinance, 
absolute and peremptory, " We, the people, 
ordain and establish." 

§ 60. The real force and effect of a preamble 
is well stated in the following authorities. My 
Lord Coke says, " The rehearsal or preamble is 
a good mean to find out the meaning of a stat- 
ute, and a key to the understanding thereof." 
Mr. Justice Buller says, " The preamble cannot 
control the enacting part of a statute which is 
expressed in clear and unambiguous terms; but, 
if any doubt arises on the words of the enacting 
part of a statute, the preamble may be resorted 
to to explain it."^ Mr. Justice Story, in his 
" Commentaries," ^ says, on this very passage, as- 
suming it, without discussion, to be, as commonly 
called, a preamble : " It cannot confer any power 
per se; it can never amount by implication to an 
enlargement of any power expressly given." 

§ 61. The enacting clause, as well as every 
thing following it, in a statute, is made law by 
force of the enactment. It is mandatory in its 
character, and in its form. It usually includes 
the substance, the essence, the epitome, of the 
whole statute; as, "Be it enacted by the Senate 
and House of Representatives, that there be, and 
hereby is, constituted and established a corpora- 
tion, or body politic, consisting of the said A, B, 
C, their associates and successors, in order to lay 

1 4 D. & E. 790; Willes, 395. 2 Yo\. i. 445. 



THIS .CONSTITUTION. 87 

out and construct a railroad, for the transpor- 
tation of passengers and merchandise through 
the populous and important agricultural and 
manufocturing region from Scamjessamin to Bal- 
leyhack." Here is the substance of the whole 
law, — the lawgiving authority, the commanding 
act, the subject-matter, and the purpose or object 
to be accomplished. The subsequent sections 
are mere detail, supplying the particulars of the 
manner of organizing the Comi^any, its mode of 
action, &c., together with specifications, qualifi- 
cations, limitations, «fcc., none of which may be 
essential to the existence of the corporation, or 
its power to eflJect the purposes of the law. 

§ 62. To this the first sentence of our Con- 
stitution is the exact counterpart : " "We, the 
people of the United States," is the lawgiving 
authority; "ordain and establish" is the manda- 
tory action ; " this Constitution for the United 
States" is the subject-matter; and "in order to 
form a more j)erfect Union," " secure the bless- 
ings of liberty," &c., are the purposes and ends 
to be accomplished thereby. To put all this out 
of the Constitution, by construction, is to de- 
capitate it entirely. It would leave it only the 
fragment of a law; without a lawgiver, without 
an enactment, without a subject, and without an 
object. On the contrary, this first sentence is 
the principle and governing clause of the whole 
instrument. By giving it a bad name, it is 
attempted to thrust it out entirely. A preamble, 



88 THIS CONSTITUTION. 

it is said, is no part of a statute. Therefore, by a 
misnomer, this smnmary and epitome of the whole 
Constitution is to be degraded from its most 
important position, as the first, most authorita- 
tive, and commanding portion of the instrument, 
to the performance of the mere secondary and 
insignificant ofiice of a preamble ; to be used, not 
as any part of the supreme law, but only by way 
of argument in the construction of some doubt- 
ful phraseology in other parts of the Constitu- 
tion. This is doing no justice to the law, but 
great injustice to the people who made it. The 
enacting clause is perfectly authoritative in its 
source, — the people ; peremptory in its action, — 
ordain and establish; definite and exact in its 
subject, — this Constitution; and distinct, broad, 
and extensive in its purposes and ends, em- 
bracing the " liberty, safety, and welfare of the 
whole Union, and all its people." 

§ 63. This part of the Constitution being, like 
all the rest, the supreme law of the land, the 
ordained and established purposes and ends of 
the people in making it are to be accomplished 
thereby, if, consistently with the moral law and 
the principles of free government, they may be; 
and " the government of the United States," 
to whom it is committed for administration and 
execution, is responsible to the nation — the 
whole people — for the performance of the whole 
of them. The powers and duties of the govern- 
ment are not to be distinguished or separated; 



THIS CONSTITUTION. 89 

nor to be held inadequate to the jDlenaiy accom- 
plishment of the declared intentions, and per- 
emptory purposes of the peoj^le of the United 

States. 



CHAPTEK YI. 



THE PUEPOSES. 



§ 64. We will next consider the character and 
extent of these six express purposes, constitut- 
ing the duties and limiting- the powers of the 
national government under the Constitution. 
They are thus expressed in the first sentence of 
the Constitution: 1. " To form a more perfect 
Union; 2. establish justice; 3. insure domestic 
tranquillity ; 4. provide for the common defence ; 
5. promote the general- welfare ; and, 6. secure 
the blessings of liberty to ourselves and our 
posterity." 

FIRST, — A MORE PERFECT UNION. 

§ 65. This has reference to the condition of 
the Union, as it existed in 1787, under the Ar- 
ticles of Confederation; which, by implication, 
it pronounces imperfect, and thereupon declares 
the purpose of forming one more perfect. Let 
us recur a little in detail to the process by which 
the independent nationality and sovereignty, 

[90] 



A MORE PERFECT UNION. 91 

that on the division of the British empire fell to 
the American portion of it, became deteriorated. 
All the rights of sovereignty and governmental 
power, which had previously been exercised over 
them by the king and Parliament, or nnder 
the authority of either, having been abrogated, 
and allegiance totally abjured, remained with 
the new nation, to be used or disposed of by 
them, and in the mean time devolved inevitably 
upon the people. The people, for this corporate 
or national purpose, were one and indivisible. 
As it was necessary they should act, and as they 
could not act collectively, they must act by 
agents or representatives. 

§ 6Q. Having no written constitution or other 
legal organization, limiting the authority of their 
agents, those whom the people chose to recog- 
nize as their representatives acted by a general 
and unlimited power, in the name of the good 
IWMjile, and exercised all their authority, sove- 
reignty, and supremacy. It made no difference 
when, how, by whom,^ or with what commissions, 
the representatives or agents were appointed, 
though most of these were sufficiently broad for 
any purpose whatever. Witness the following: 
In the Yirginia Convention, June 20, 1776, 

1 None of them were appointed by any legal authority till after the 
organization of the States, certainly not by any under the king's govern- 
ment; and there was no other. Some delegates to Congress were 
appointed by conventions of citizens in small localities, as towns or 
counties; but few, if any, were appointed by any general convention, 
properly representing a whole colony. 



92 A MORE PEEFECT UNION. 

" Resolved, that . . . Esquires, be, and they 
hereby are, appointed delegates to represent this, 
colony in the general Congress, for one year 
from the 11th of August next." July 9, 1776, the 
Convention of 'New York authorized her dele- 
gates "^^ to concert and adopt all such measures 
as they may deem conducive to the happiness 
and welfare of the United States." " Pennsyl- 
vania, in Convention, July 20, 1776, proceeded 
to the election of delegates to serve in the Con- 
tinental Congress and chose for that service 
Dr. Benjamin Franklin," &c. " State of New 
Hampshire, in House of Representatives, Sept. 
12, 1776, voted that . . . be, and hereby is, ap- 
pointed a delegate to represent this State at the 
Continental Congress, one year next ensuing. 
In Council eodeTu die, read and concurred." 
Massachusetts, Dec. 10, 1776, expressly author- 
ized their delegates to direct any measures " for 
prosecuting the war, concluding peace, con- 
tracting alliances, establishing commerce," and 
the rights and liberty of the. American States; 
in fact, to do any thing which the Declaration of 
Independence alleged that independent nations 
could do. 

§ 67. The appointing power itself had no 
other than a Revolutionar}^ authority; and their 
acts, like those of their appointees, whether 
in form recommendatory or mandatory, were 
received and obeyed as laws, because they ex- 
pressed the will of the people, and were accepted 



A MORE PEEFECT XrXIOX. OSt" 

and approved as such. In this manner the Con- 
tinental Congress became and was the supreme 
power in the land. They exercised, in the name 
of the peojDle, all the powers of a complete, 
independent national sovereignty, and were sus- 
tained and supported therein by the nation. 
Before the Declaration of Independence, they 
stvled themselves the " ofuardians of the rio'hts 
and liberties of the Colonies;" and were called, 
in the constitution of Xew Jersey, " the Supreme 
Council of the American Colonies." Chief 
Justice Jay said,^ '^* To all general purposes, we 
have uniformly been one peo^^le; each indi\T[dual 
citizen everywhere enjoying the same natural 
rights, privileges, and jDrotection. As a nation, 
we made peace and war ; as a nation, we 
have vanquished our common enemies; as a 
nation, we have formed alliances, and made 
treaties, and entered into various compacts and 
conventions with foreign States." 

§ 68. Within the first month of their actual 
existence, as the organs of the Union, they 
resolved imanimously, " That, from and after the 
first day of December next (1774), there be no 
importation into British America, from Great 
Britain or Ireland, of any goods, wares, or 
merchandise whatsoever." Within a few days 
afterwards, they made and published a solemn 
Declaration of the rights and liberties of their 
constituents, which has ncA^er been revoked or 

1 Federalist, Xo. 2. 



94 A MORE PERFECT UNION. 

annulled. Among- these is the followmg, which 
has been repeated and re-enacted, in all possible 
forms, up to the present time : — 

" That the inhabitants of the English Colo- 
nies in !N^orth America, by the immutable laws 
of nature, the principles of the English Consti- 
tution, and the several charters and compacts, 
. . . are entitled to life, liberty, and property; 
and that they have never ceded, to any sovereign 
power whatever, a right to dispose of either 
without their consent." They also unanimously, 
in a form which they considered solemnly bind- 
ing on themselves j^ersonally and their consti- 
tuents, totally abolished the slave-trade, from and 
after the same first day of December, 1774. 

§ 69. In 1775 the Provincial Convention of 
Massachusetts petitioned Congress for explicit 
advice " respecting the powers of civil govern- 
ment," declaring their readiness to " submit to 
such general plan as the Congress may direct 
for the .colonies." Congress answered, June 9, 
by recommending them " to conform, as near 
as may be, to the spirit and substance of the 
charter, . . . luitil a governor of his Majesty's 
appointment will consent to govern the colony 
according to its charter." 'New Hampshire 
requested " the advice and direction of the 
Congress with respect to a method of our 
administering justice, and regulating our civil 
police y " and it was recommended to them to 
establish such a form of government . . . "as 



A MORE PERFECT UNION. 95 

will most effectually secure peace and good 
order in the province, chiring the continuance 
of the present disj)ute between Great Britain 
and the colonies." A similar course was taken 
with South Carolina and Yirginia, before the 
adoption of the general Resolution of May 10, 
1776. 

§ 70. This Kesolution — after a preamble recit- 
ing that the people have been excluded from 
the protection of the British crown; that their 
humble petitions are unanswered; that the whole 
force of the kingdom is exerted for their destruc- 
tion; that it is against reason and good con- 
science that the necessary oaths for the support 
of any government under the crown should 
noAV be taken; that it is necessary that all au- 
thority under the crown should be totally sup- 
pressed; and that all the powers of government 
should be exerted, under the authority of the 
j)eo]3le, for the preservation of internal peace and 
good order, as well as for the defence of their 
lives, liberties, and properties against the hostile 
invasions and cruel depredations of their ene- 
mies " — is as follows : " Resolved, That it be 
recommended to the respective assemblies and 
conventions of the United Colonies, where no 
government sufficient to the exigencies of their 
affairs hath been hitherto established, to adopt 
such government as shall, in the opinion of the 
representatives of the people, best conduce to 
the happiness and safety of their constituents in 



96 A MORE PEEFECT UNION. 

particular, and America in general." By virtue 
of this resolution, all the other colonies organ- 
ized their own local governments; and all of 
them, in some form, recognized the supremacy 
of the Continental Congress. The general 
government itself, however, as well as the local 
governments, was at this time considered as 
temporary only, during the contest for their 
liberties ; but though temporary, yet, while it 
continued, it was supreme, absolute, and final. 

§ 71. In June they settled the right of citizen- 
ship as follows, viz., " Resolved, That all persons 
abiding within any of, the United Colonies, and 
deriving protection from the laws of the same, 
owe allegiance to the said laws, and are members 
of such colony; and that all persons passing 
through, visiting, or making a temporary stay in 
any of the said colonies, being entitled to the 
protection of the laws during the time of such 
passage, visitation, or temporary stay, owe, 
during the same, allegiance thereto." A few 
weeks later, in order to induce foreigners in the 
British army to remain and " become members 
of these States," Congress ordered that all such 
shall be " invested with the rights, privileges, 
and immunities of natives, as established by the 
laws of these States." — " The Provincial Con- 
vention of 'New York was directed immediately 
to render Hudson's River defensible." They 
resolved, " That no bill of exchange, draft, or 
order of any officer in the [British] army 



A MORE PERFECT UNION. 97 

or navy ... be received or negotiated, or any 
money supplied to them by any person in Amer- 
ica; " " that no provisions or necessaries of any 
kind be furnished or sujDplied to or for the use 
of the British army or navy; that no vessel 
employed in transporting British troops be 
freighted or furnished with provisions or neces- 
saries, until further orders from this Congress." 
Provisions were made for collecting saltpetre 
and sulphur, to be manufactured into gun- 
powder, for the use of the Continent;" and it 
resolved, " that the saltpetre and sulphur, col- 
lected in consequence of these resolves of 
Congress, be paid for out of the Continental 
fund," 

§ 72. They appointed a " Commander-in-chief," 
and other officers, " of the Army of the United 
Colonies, and of all the forces now raised or to 
be raised for the defence of American liberty, 
and for repelling every hostile invasion thereof; " 
and adopted a body of " Rules and Regulations 
for the Continental Army." They established 
a Post, and appointed a " Postmaster-general 
of the United Colonies," and issued paper 
money or bills of credit in their name. They 
authorized and commissioned public vessels of 
war, and privateers; made a code of regulations 
relating to prizes and captures; and instituted 
courts for their adjudication and condemna- 
tion. They established " the IS^avy of the United 
Colonies," and made a code of " Rules for its 

7 



'98 A MORE PERFECT UNION. 

regulation." They authorized an attack on the 
British troops in Boston, " in any manner the 
General may think expedient, notwithstanding 
the town and property in it may thereby be 
destroyed." April 6, 1776, they made new 
regulations of foreign trade, and again pro- 
hibited the " importation of slaves into any of the 
thirteen colonies." Though some of these acts 
were in the form of recommendations, they were 
uniformly considered, treated, and obeyed as 
laws. 

§ 73. All these, and many other similar powers 
of supreme sovereignty and nationality, were 
exercised by the Continental Congress, in the 
name of the people, while they claimed to be, 
and intended to continue, an integral part of 
the British empire, provided they could do it 
on terms compatible with their rights and 
liberties. But, on the fourth day of July, 1776, 
they cast off this temporary character of their 
government, declared the United Colonies free 
and independent States, and assumed, "as one 
PEOPLE," a " separate and equal station . . . 
among the powers of the earth ; " with " full 
power to levy war, conclude peace, contract alli- 
ances, establish commerce, and do all other acts 
and things which independent States may of right 
do," including every power of distinct nation- 
ality and supreme sovereignty. Such was the 
Union in its origin, and such the rights and 
duties of its government, when the British 



A MORE PERFECT UNION. 99 

empire first became permanently and irrevocably 
divided. The American portion of it had as 
ample powers, in reference to themselves and 
their concerns, as the whole had possessed 
before, and as the Enropean portion retained 
afterwards in reference to the remainder. 

§ 74. In this Declaration, Congress announce 
themselves, and assmne to be, the " Kepresen- 
tatives of the United States," acting in the 
name and by the authority of the people. The 
colonies, individually, are not named in the in- 
strument, nor is any one of them. The docu- 
ment does not purport to be the act of a number 
of aggregate communities, either as Colonies or 
States, but of the " Representatives of the 
United States, in General Congress assembled ; " 
and was signed by them, not as delegates from 
the particular colonies, by whose people they 
had been elected and sent, but was signed by 
them promiscuously and individually only, as 
members of the " General Congress " of the 
United States.^ This was not the imperfect 
Union, under the confederation or league, which 
the Constitution announces the purjoose to make 
" more perfect." 

§ 75. The disposition to fritter away the 
national authority was early noticed in the prog- 
ress of the Articles of Confederation through 

1 The idea of voting and acting in Congress by States grew up after 
the State governments were organized, and out of their attempt to form 
a treaty or league of Confederation, which did not go into legal operation 
till 1781, when the war substantially came to a close. 



100 A MOEE PEEFECT UNION. 

Congress. They were reported in that body, 
in their original form, soon after the Declaration 
of Independence. As they were drawn up by the 
same men who had just signed that instrument,^ 
it may well be supposed that they then exhibited 
something of the same spirit. " They were, in 
fact, but a digest, and even a limitation, in the 
shape of a written compact, of those undefined 
and discretionary sovereign powers which were 
delegated by the [people of the] Colonies to 
the Congress of 1774-75, and which had been 
freely exercised and implicitly obeyed. A 
remarkable instance of the exercise of this 
original, dormant, and vast discretion, appears 
on the Journals of Congress the latter end of 
1776.^ Congress transferred to the Commander- 
in-chief, for the term of six months, complete 
dictatorial power over the liberty and property 
of the citizens of the United States; in like 
manner as the Roman Senate, in critical times 
of the Kepublic, was wont to have recourse to a 
dictator, ne quid rejpuhlica detrimenti capiat.''^ ^ 

§ 76. They were, however, long held under 
the process of alteration and deterioration, 
under the name of amendment, mostly in com- 
mittee, so that the progress of dilapidation does 
not appear on the Journal, though it is said to 
have been as rapid as it was effectual, till it 

1 They were, however, actually drawn by John Dickinson, who had 
perseveringly opposed the Declaration, and refused to sign it, even after 
it had been passed, under the instructions of his own constituents. 

2 Vol. ii. p. 475. 3 1 Kent's Com. 198. 



A MORE PEEFECT UNION. 101 

finally passed Congress, and was adopted by 
the State legislatures (1781) in the shape it 
retained when the Constitution was made ; 
assuming the absolute sovereignty and inde- 
pendence of each particular State, with the 
retention of " every power, jurisdiction, and 
right which is not, by this confederation, ex- 
pressly delegated to the United States in Con- 
gress assembled." This was sent to the several 
States in November, 1777, and was adopted by 
every State legislature by March, 1781, in 
" Articles of Confederation and perpetual Union," 
which assumed to confer the most important 
powers of national sovereignty on Congress, 
with corresponding restrictions on the States, 
and binding them to perpetual union irrevo- 
cably, and obedience in the premises ; but 
without any executive or judicial authority, or 
other means of enforcing the smallest requi- 
sition of men, money, or measures. " The 
powers of Congress, as enumerated in the 
Articles of Confederation, would perhaps have 
been competent for all the essential purposes 
of the Union, had they been duly distributed 
among the departments of a well-balanced gov- 
ernment, and been carried down, through the 
medium of a federal, judicial, and executive 
power, to the individual citizens of the Union." ^ 
§ 77. The first constitution of Maryland, 
formed the next month after the Declaration of 

1 1 Kent's Com. 199. 



102 A MORE PERFECT UNION. 

Independence (Aug. 14, 1776), declares, "that 
the people of this State ought to have the sole 
and exclusive right of regulating the internal 
government and police thereof; " and before the 
State government was organized, by virtue of 
this Constitution, adopted like all the rest under 
the auspices of Congress, the State convention 
passed " certain resolutions " respecting the rais- 
ing of their allotment of soldiers, which seem 
to have been considered by Congress as an 
attemjDt at nullification ; for they thereupon 
resolved " that the faith that this House, by 
virtue of the ]30wer with which they were vested, 
have plighted must be obligatory upon their con- 
stituents; that no one State can, by its own act, 
be released therefrom." The constitution of 
[N'orth Carolina, dated Dec. 18, 1776, contains 
the same Article above cited from Maryland. 
The constitution of I^qw York, of 1777, reciting 
the exclusion of the inhabitants " from the pro- 
tection of the British crown ; the many and great 
inconveniences of their temporary government 
by [provincial] congress and committees ; " . . . 
"the resolution of the Continental Congress re- 
commending local governments to be established 
by the people of their respective colonies ; " and 
their " Declaration of Independence," — deduces 
therefrom, that " all power whatever therein [in 
that State] hath reverted to the people thereof; " 
and then proceeds, " in the name and by the 
authority of the good people of this State, 



A MORE PERFECT UNION. 103 

[to] ordain, determine, and declare that no 
anthority shall, on any pretence whatever, be 
exercised over the peojjle or members of this 
State, but such as shall be derived from and 
granted by them." 

§ 78. 'By the Massachusetts constitution of 
1780, which, notwithstanding divers general 
revisions since the date of the Constitution 
of the United States, still remains, in this par- 
ticular, unaltered, the people thereof declare 
that they are " a free, sovereign, and inde- 
pendent body politic or State, and have the 
sole and exclusive right of governing them- 
selves, . . . and do, and for ever hereafter shall, 
exercise and enjoy every power, jurisdiction, and 
right, which is not, or may not hereafter be, by 
them expressly delegated to the United States 
in Congress assembled." And the constitution 
of ]!^ew Hampshire, of 1783, although pei-haps 
justly considered one of the most loyal to the 
United-States government of any State in the 
Union, adopts the Article in the s,ame words; 
and there they stand unaltered to this day, as 
taken in both instances from the Articles of 
Confederation. That system, instead of being 
a government of the people, for the people, 
and by the people, was merely a league or 
treaty between the different State legislatures, 
assuming to themselves sovereignty and inde- 
pendence, and was destitute of any sanction for 
its requirements. The State governments were 



104 A MORE PERFECT UNION. 

all formed under the auspices of the " United 
States in Congress assembled," and recognized, 
in some form, their position as component parts 
of the Union, and their subordination to its 
government. State legislatures, so situated, 
could not, by any combination, treaty, of league 
among themselves, augment the powers of each 
other, or transfer any that they legitimately 
possessed to another government; nor could they 
rightfully diminish those with which the circum- 
stances and the acquiescence of .the people had 
invested the Union, and by virtue of which the 
State governments themselves were inaugurated, 
sustained, and defended. Founded, constituted, 
and administered on such principles, the Confed- 
eration could be expected to come to no better 
end than, at the close of six years from its 
adoption, it short history shows. Though it 
was originally proposed by members of Con- 
gress, and by them transmitted to the State 
legislatures for their adoption, the United States 
are nowhere mentioned as a party to it, and, as 
a nation or independent body jDolitic, never be- 
came such, by any formal act, either of the people 
or of their authorized rejDresentatives. 

§ 79. Mr. "Wilson, afterwards Mr. Justice Wil- 
son, of the Supreme Court, said in the Convention 
of 1787, " Among the first sentiments expressed 
in the first Congress, one was, that Virginia is 
no more, that Massachusetts is no more, that 
Pennsylvania is no more, &c. We are now one 



A MORE PERFECT UNION. 105 

nation of brethren; we must bury all local 
interests and distinctions. This language con- 
tinued for some time. The tables at length began 
to turn. 'No sooner were the State governments 
formed, than their jealousy and ambition began 
to display themselves. Each endeavored to cut 
a slice from the common loaf, . . . till at length 
the Confederation became frittered down to the 
impotent condition in which it now stands." 
It is not doubtful that a disposition early existed 
to view the general government as they had 
been accustomed to view the imperial govern- 
ment, as in some respect exterior, if not foreign, 
to themselves, and thus liable to distrust. This 
feeling did not arise, however, while Congress 
was the only authority on which they relied. 
It rapidly became chronic after the new gov- 
ernments, under the auspices of Congress, had 
been organized for the States. The interest 
principally affected by it, and the one on account 
of which it was studiously fostered and en- 
couraged, was, and still is, the slave interest; 
as being adverse to the justice, liberty, and 
equal rights of the Declaration of Indejjen- 
dence and of the Constitution. Mr. Wilson's 
short and plain statement of the actual result 
of thirteen years' experience of the Union, 
the last six years only being under the Con- 
federation, is corroborated by almost every 
leading statesman in the convention. Mr. 
Madison said, in the 'same debate, " Experience 



106 A MORE PERFECT UNION. 

had eyinced a constant tendency in the States 
to encroach on the Federal authority." Mr. 
Charles Pinckney said, " If the States were left 
to act for themselves in any case, it would be 
impossible to defend the national prerogatives, 
however extensive they might be on paper." 
Alexander Hamilton was of the opinion, that, 
" if the general government is too weak at first, 
it will continually grow weaker. The ambition 
and local interests of the respective members 
will be constantly undermining and usurping 
upon its prerogatives, till it comes to a disso- 
lution." Mr. Wilson conceived that, " in spite 
of every precaution, the general government 
would be in perpetual danger of encroachments 
from the State governments. 

§80. The authors of the " Federalist," in dis- 
cussing the insufiiciency of the Confederation, 
say:^ " Facts too stubborn to be resisted have 
produced a . . . general assent to the abstract 
proposition, that there exist material defects in 
our national system; but [some], while they ad- 
mit that the government of the United States is 
destitute of energy, . . . contend against con- 
ferring upon it those powers which are requisite 
to supply that energy. They seem still to aim at 
things repugnant and irreconcilable; at an aug- 
mentation of Federal authority, without a diminu- 
tion of State authority; at sovereignty in the 
Union, and complete independence in the mem- 

1 No. 15. 



A MORE PERFECT UNION. 107 

bers. They still, in fine, seem to cherish, with 
blind devotion, the political monster of an im- 
perkmi in imjperior Mr. Justice Story says,^ 
" The States notoriously disregarded the rights 
and prerogatives admitted to belong to the Con- 
federacy; and even the requisitions of Congress, 
for objects unquestionably within their constitu- 
tional authority, were openly derided or silently 
evaded." 

§ 81. This brings us to a consideration of the 
remedy adopted by the people, which was, " to 
form a more perfect Union ; " in order to which 
they " ordain and establish this Constitution," 
creating what they call " the government of the 
United States." The Constitution of the gov- 
ernment, then, was the means, by the legitimate 
operation of which they intended to " form a 
more perfect Union." We have seen that the 
imperfect Union under the Confederation, which 
of course they intended to avoid, was a mere 
treaty or league of nominally independent 
States, without power to control its own mem- 
bers,* or the means of reaching the individuals 
composing them. The " more perfect Union," 
therefore, to be formed, must be the reverse of 
this in both respects. It must be the " supreme 
law of the land," controlling all its constituent 
parts and members, whether individual or cor- 
porate. " The idea of a national government 
involves in it not only an authority over indi- 

1 2 Com. 375. 



108 A MOEE PERFECT UNION. 

vidual citizens, but an indefinite supremacy 
over all persons and things, so far as they 
are objects of lawful government." — " In some 
instances, . . . the power of the new govern- 
ment will act on the States in their collective 
characters." ^ 

§ 82. Mr. Hamilton told the Convention,^ 
" The general power, whatever be its form, if it 
preserves itself, must swallow up the State 
powers. Otherwise, it will be swallowed up by 
them. . . . Two sovereignties cannot co-exist 
within the same limits." The same sentiment 
was expressed by several of the most distin- 
guished members of the Convention, and ques- 
tioned by none. So far as appears, it was 
accepted by all. In the Virginia Convention, 
June 12, 1788, Mr. Grayson called it " a political 
absurdity to suppose that there can be two con- 
current legislatures Must it not strike 

every man's mind, that two unlimited, co-or- 
dinate, and co-equal authorities, over the same 
subjects, cannot exist together?"^ Accord- 
ingly, we find that such supremacy is the 
character of the Constitution and of the gov- 
ernment it creates, as given in its own words, 
on the face of the instrument. Such a gov- 
ernment, faithfully administered according to 
the spirit of its formation, is fully adequate, at 
least, to this first and important purpose of its 

1 Madison in the " Federalist." See Nos. 39, 40. 

2 Speech of June, 1787. ^ 3 Elliot's Debates, 284. 



A MORE PERFECT UNION. 109 

creation, "to form a more perfect Union." It 
must necessarily form it, and preserve it, as 
long as it remains or is capable of preserving 
its own existence, and defending its own prerog- 
atives. 

§ 83. The contemplated " more perfect Union " 
was a union of the people of the United States 
among themselves. They are the only parties 
mentioned or alluded to in this part of the 
instrument. 'No individual State is mentioned 
or indicated as a party, or has any claim to be 
so considered. That this was well understood 
by the friends of the Constitution is manifest 
from its terms, as well as by the reasons given 
for its adoption. That it was also understood by 
its opponents is equally manifest, from the spirit 
and manner in which its adoj^tion was originally 
resisted, and by the altered form which the 
authors of the late Rebellion have given to the 
parallel portion of their own constitution. They 
say : " We, the people of the Confederate 
States, each State acting in its sovereign and 
independent character, in order to form a per- 
manent federal government," &c., " ordain and 
establish," &c.; thus changing the whole cha- 
racter of the instrument, and carrying it back 
to the very imperfect union for which our 
fatheus intended to substitute one " more per- 
fect," such a Union as would make them what 
the Declaration of Independence had pro- 
nounced them to be, "one jDCople," with all 



IIG A MORE PERFECT UNION. 

the rights and powers of other independent 
nations. 

§ 84. The intention to do this was well ex- 
pressed by the Congress of the Confederation, 
in calling the Constitutional Convention to form 
^^ a firm national government," ..." adequate 
to the exigencies of government and the preser- 
vation of the Union." The Convention itself 
expressed the same idea in their first resolution 
thus : " That a national government ought to 
be established, consisting of a supreme legis- 
lative, executive, and judiciary ; " and, lastly, 
the people of the United States said the same 
thing, by ordaining and establishing just such 
a government. The authority of a common 
and adequate supreme power, to guard rights 
and prevent wrongs, is of itself a perfect and 
perpetual bond of union, — not a union between 
other parties not named, but between the people 
themselves. This is the Union that a single 
national government makes and perpetuates. 
A confederate government between States is a 
treaty or league. A " perfect Union " among 
a people is a nation. The difference is no more 
plain and palpable on the face of the two instru- 
ments, than it is and always was thoroughly 
understood by all the parties concerned. Chief 
Justice Jay remarked,^ " I^ot only the first, but 
every succeeding Congress, as well as the late 
Convention, have invariably joined with the 

1 Federalist, No. 2. 



A MORE PERFECT UNION. HI 

people in thinking that the prosperity of America 
depended on its union. To preserve and per- 
petuate it was the great object of the people in 
forming the Convention, and it is the great object 
of the plan which the Convention has advised 
them to adopt;" and, after it was adopted, he 
would have had the authority of the Constitution 
for adding, " It was a great object of the people 
of the United States in its adoption;" for so 
they say in this enacting clause. 

§ 85. The first dilapidation from the original 
principle of national unity, afterwards sanc- 
tioned in the Declaration of Independence as 
" one people," to the destructive doctrine of 
State sovereignty and independence, was re- 
traced or retracted, and disavowed by the peo- 
ple, in the formation of the Constitution. The 
second substitution of State rights or State 
sovereignty, for the supi-emacy of the constitu- 
tional government of the United States, has 
cost the nation the blood, treasure, and deso- 
lation of a four years' rebellion and civil war. 
The third, if it shall now be inaugurated as 
proposed, by subjecting the " life, liberty, or 
property," the " defence, welfare," and happiness, 
of persons owing allegiance to, and entitled to 
the rights, privileges, and immunities of natural- 
born citizens of the United States under the 
Constitution, to the tender mercies of a j)rivi- 
leged class of local taskmasters, acting in the 
name of State rights or otherwise, will terminate 



112 A MOEE PERFECT UNION. 

in a more disastrous penalty, which, though we 
may escape, we shall not escape the unutterable 
disgrace of leaving as a cruel legacy to our 
children. 



CHAPTEK yil. 



ESTABLISH JUSTICE. 



§ 86. The second avowed purpose of the 
American people in ordaining their Constitution 
was to " estabhsh justice." This may be said 
to be an ultimate object of all government. It 
includes the doing justice themselves among the 
nations, their peers, and to their subjects and 
subordinates ; requiring and administering it 
among all people within their jurisdiction, in 
their intercourse with each other, and prevent- 
ing or punishing every species o injustice. 'No 
human government can be expected to accom-' 
plish all this, any more than any thing else, per- 
fectly. IS^ot even the divine government so does 
it in this imperfect world. But civil government 
is the divine ordinance for making the effort 
among men; and the human government that 
makes the nearest approach to its accomplish- 
ment comes the nearest to answering the pur- 
pose of its creation. The annunciation, on the 
fixce of the Constitution, that the establishment 

8 [113] 



114 ESTABLISH JUSTICE. 

of justice is the purpose of the people of the 
United States in ordaining the government, 
places justice itself at the foundation of the 
fabric, and prescribes, as a duty, that the whole 
administration of it should be on that principle. 
IS^either the people nor their government, to be 
sure, have any rightful power to authorize in- 
justice ; but this is very different from a positive 
ordinance to establish justice. This requires 
justice universally, and with the requirement 
supplies the means and the power to execute 
it, to the extent of the region over which they 
rule. 

§ 87. " Prior to the date of the Constitution, 
. . . the United States had, by taking a place 
among the nations of the earth, become amenable 
to the law of nations; and it was their interest, 
as well as their duty, to provide that those laws 
should be respected -and obeyed. In their 
national character and capacity, the United 
States were responsible to foreign nations for* 
the conduct of each State, relative to the law of 
nations and the performance of treaties ; and 
there the inexpediency of referring all such 
questions to State courts, and particularly to 
the courts of delinquent States, became apparent. 
While all the States were bound to protect 
each, and the citizens of each, it was highly 
proper and reasonable, that they should be in a 
capacity, not only to cause justice to be done 
to each and the citizens of each, but also to 



ESTABLISH JUSTICE. 115 

cause justice to be done by each, and the citizens 
of each; and that not by violence and force, but 
by a stable, sedate, and regular course of judicial 
procedure." ^ 

§ 88. ^Notwithstanding it thus places justice 
as the foundation of the government, and re- 
quires it to be administered on that principle, 
much pains has been taken to prove that it 
nevertheless actually authorizes or recognizes 
absolute injustice.* To establish this, three dif- 
ferent clauses of the Constitution have been 
cited as showing an infringement of the in- 
alienable rights of man, in allowing one man to 
acquire an ownership or right of proj)erty in 
another, and so admitting of absolute chattel 
slavery. The first is where the people are 
divided into classes, for certain purposes, under 
the names of free ^persons and otlier persons. 
The second is where Congress is restrained 
temporarily from interfering with the migration 
of persons. And the third is where persons 
held to service or labor, and escaping, are re- 
quired to be returned. That neither nor all of 
these do any such thing as is charged, is elabo- 
rately shown elsewhere. It is only necessary 
to remark here, that none of them authorize 
any injustice, or recognize any such right as is 
supposed. It is not known, that any other j^arts 
of the Constitution have ever been relied upon 
to show that it violates the sound principles of 

1 Per Jay, Chief Justice, in Chisholm v. Georgia, 2 Dall. Rep. 419. 



116 DOMESTIC TEANQUILLITY. 

justice and moral right, which it inculcates and 
professes to establish. 

DOMESTIC tea:nquillity. 

§ 89. The third great purpose, which the 
American people constitute their government 
to effect, is to " insure domestic tranquillity." 
This is done by the certainty and efficiency 
with which justice is adminisfered and enforced 
among men, and every species of wrong and 
injustice is suppressed or punished, making all 
persons secure and safe in the possession and 
enjoyment of their rights, and removing all in- 
ducement to riot, tumult, and aggression, by 
taking away all possibility of their success. The 
same means and the same authority that estab- 
lish and maintain justice in the land, make the 
people tranquil, contented, and happy in the 
pursuit and enjoyment of their own rights, 
without motive or inducement to agitation or 
insurrection, and without an excuse for indi- 
vidual malice to attempt the gratification of 
personal retaliation or revenge. All the powers 
of the Constitution that require and enable the 
different departments of the government to 
administer it with justice and equity, and espe- 
cially all the powers of the judiciary that en- 
able them to administer the law on the same 
principles between man and man, tend direct- 
ly to the accomplishment of this part of the 



DOMESTIC TRANQUILLITY. 117 

design of the American people, and of course 
to enable the government to fulfil this great 
duty devolved upon them, — to insure domestic 
tranquilHty. 



CHAPTER YIII. 



THE COMMON DEFENCE. 



§ 90. The words " common defence and gene- 
ral welfare " were not inserted in any part of 
the Constitution till Sept. 4, 1787, just ten 
working days before the labors of the Conven- 
tion were finished. They were then reported 
by the " grand Committee," appointed on motion 
of Mr. Sherman, and of which Mr. Brearley was 
chairman, as they now stand with the rest of 
the second line of the 8th section of Article 
I.; and adopted in the same form by the Con- 
vention, on the same day, nem. con. Four days 
after, Sept. 8, the whole work of the Conven- 
tion was sent to the Committee of Revision, 
" to revise the style and arrange the Articles " 
agreed on. They reported the final draft, with 
the 8th section as it now stands to the end 
of the second Hne, and with these important 
words also added to the new or amended draft" 
of the introductory or enacting clause, on the 
12th. On the 14th, the Convention added, after 
the words " general welfare " in the 8th section, 

[118] 



THE COMMON DEFENCE. 119 

the third hne on uniformity as it now stands; 
having, on the 13th, approved the revised draft 
of the enacting clanse, without objection. On 
Saturday, the 15th of September, the Convention 
completed theii* re-examination of the whole 
draft of the Committee of Revision. They 
had taken up every clause in detail; altered, 
amended, or approved of each one particularly; 
then adopted the whole generally; and sent it 
to the proper clerk for engrossment. On Mon- 
day, the 17th, they signed it as engrossed, and 
dissolved the Convention. 

§ 91. The fourth purpose, in the ordei" in 
which they are placed, for which the American 
people established their government, was " to 
provide for the common defence." — " Safety," 
says Mr. Jay, " seems to be the first object." 
..." The safety of the whole is the interest of 
the whole, and cannot be provided for without 
government."^ This may be said to be the 
most important object of the people, and the 
first, most obvious, and most imperative duty of 
the government. It is, in fact, the one on which 
the value of all the others depends. If a 
nation cannot defend its own existence, in the 
possession of its own prerogatives and rights, 
it is of little consequence what those rights ai'e, 
or how else they may be estimated and re- 
garded. This, therefore, is an object of primary 
necessity for every nation, and a primary duty 

1 Federalist, Nos. 3, 4. 



120 THE COMMON DEEENCE. 

for every independent and supreme government, 
however that government may be constituted 
and organized. 

§ 92. Our Constitution rightfully gives it this 
prominent place among the avowed purposes of 
the people, to be accomplished by their govern- 
ment. The necessity and duty being impera- 
tive; the magnitude of the obstacles to be met 
and overcome, indefinite and unknown, — the 
power to meet them, in order to be commen- 
surate, without which they are worthless, must 
be broad and unlimited, co-extensive with all 
the i^esources of the nation, moral and physical, 
present and prospective. " It is in vain to 
oppose constitutional barriers to the. impulse of 
self-preservation."^ — " Safety from external dan- 
ger is the most powerful director of national 
conduct. Even the ardent love of liberty will, 
after a time, give way to its dictates. The 
violent destruction of life and property incident 
to war, the continual effort and alarm attendant 
on a state of continued danger, will compel na- 
tions the most attached to liberty to resort for 
repose and security to institutions which have a 
tendency to destroy their political rights. To 
be more safe, they at length become willing to 
be less free." ^ 

§ 93. In this view, the words of this part of 
the Constitution are peculiarly apt and well 
chosen, — " provide for^ the common defence." 

1 Madison, Eederalist, No. 41. 2 Hamilton, Ibid, No. 8. 



THE COMMON DEFENCE. 121 

They include not merely the making defence 
when called for, — all the powers, demands, and 
appliances of actual war, when it comes, — 
but the providence necessary to anticipate and 
secui'e, in times of profound peace, the appro- 
priate means for making the defence effectual 
when wanted; — not only collecting and pre- 
serving all kinds of warlike implements, but 
cultivating and securing the raw material for 
the same, above ground and under ground, — 
the forest-trees and minerals, together with the 
science necessary for nurturing and working 
them ; — not only fostering and encouraging the 
profession of soldiers and sailors, but establish- 
ing and maintaining . permanent institutions of 
learning and science for disciplining and edu- 
cating, in adequate numbers, the youth of the 
land, for future officers and men of war by sea 
and land. 

§ 94. It is not a little singular, that this great 
and really unlimited power of national defence 
should have been, from the origin of our govern- 
ment, universally admitted in theory, and prac- 
tically used, so far as the principle is concerned, 
to the extent of its whole length and breadth; 
and yet that its source in the Constitution has 
never been generally admitted, if indeed it has 
often been sought or discovered. It has not been 
admitted to be in this part of the instrument ; 
because, it is said, this is only a preamble, and 
can confer no power itself, or even enlarge any 



122 THE COMMON DErENCE. 

power otherwise confein^ed, but is essentially 
outside of the Constitution, and no part of the 
supreme law of the land. It is said also that 
it is not in section 8 of Article I., — the only 
other place where the words " provide for the 
common defence " occur, — because the sole ob- 
ject of that clause is to confer on Congress the 
power of taxation, or, as some say, that of taxa- 
tion and appropriation; either of which excludes 
from it any more general power of national 
defence, than such as may be made by the use 
of a revenue derived from taxation. It cer- 
tainly is not in any other clause; for the same 
words, or any others of equivalent signification, 
are nowhere else to be found in the instrument. 

§ 95. Alexander Hamilton says the common 
defence is one of " the principal purposes to be 
answered by union ; " and James Madison says, 
" it is an avowed and essential object of the 
American Union." ^ The idea seems to be 
taken directly from this first sentence of the 
Constitution; for it is here expressed precisely, 
and not at all in any other part. Xet these 
writers do not expressly refer to it as the origin 
of this or any other power of the government, 
or as imposing on them the duty of executing 
it. The Constitution had never been objected 
to on this ground; and it was no part of their 
duty, as advocates of its adoption, to enlarge 
the field of operation for the objectors. They 

1 Eederalist, Nos. 23, 41. 



THE COMMON DEFENCE. 123 

both agree that the power must be unUmited in 
its extent, though they do not appear to con- 
template it as embracing particulars in addition 
to, and differing in nature and character from, 
those specifically mentioned and assigned, out 
of the general powers of the government, to 
the legislative department. Hamilton says, 
" The authorities essential to the care of the 
common defence are these: To raise armies; 
build and equip fleets; prescribe rules for the 
government of both; to direct their operations; 
to provide for their support." Madison says, 
"They are those of declaring war, and grantiiig 
letters of marque ; of providing armies and 
fleets ; of regulating and calling forth the 
militia ; of levying and borrowing money." 
These are all specified powers of different de- 
partments, either the legislative or executive, to 
whom they are distributed by the Constitution; 
but they fall far short of embracing the whole 
curriculum necessary to enable the government 
to accomplish their great and comprehensive 
duty, as here prescribed, " to provide for the 
common defence." 

§ 96. They may be sufficient to enable them 
to carry on war when it actually comes, as it 
may, with or without being declared. But how 
do they get the providential power to do many 
other and more important things, by way of 
preparation, to render these effectual? To build, 
stock, furnish, man, and maintain fortresses^ 



124 THE COMMON DEFENCE. 

magazines, armories, arsenals, dock-yards, ship- 
yards, founderies, manufactories, and machinery 
for the fabrication of all kinds of warlike imple- 
mentlS; military roads, ships of war, and ship- 
canals ; working mines, growing ship-timber, and 
raising hemp? All this and much more when 
there is no war, nor prospect of any? To en- 
courage sailors by bounties, and give education, 
in all the sciences and mysteries of war, to young 
men fitting for the military or naval service of 
the country? All these powers, to a greater or 
less extent, the government have been using 
evjer since it was established; and must continue 
to use, or give up their chief duty of providing 
for the common defence. And yet they are 
none of them specified in any list of the parti- 
cular duties of any department. 

§ 97. They are included in the general duty 
and power of the government " to provide for 
the common defence ; " and, so far as they are 
legislative, they devolve directly on Congress, 
as the depository of all the legislative power 
of the government, and also by the special 
authority to make all laws necessary and pro- 
per for carrying into execution all the powers 
vested in the government of the United States.^ 

i In Gibbons v. Ogden, 9 Wheat. E., Chief Justice Marshall, speak- 
ing for the Court, says, " The powers given, as fairly understood, render 
it [the government] competent ... to the objects for which it is declared 
to be instituted." This refers directly to the objects mentioned in the 
enacting clause, and pronounces the powers of the government adequate 
to the accomplishment of them all. 



THE COMMON DEFENCE. 125 

When the people say they ordain this govern- 
ment on purpose " to provide for the common 
defence," to assert that they confer no power 
for the purpose is an attempt not only to can- 
cel this part of the Constitution, but absolutely 
to stultify the nation. That a Constitution 
instituting a national government could have 
been made expressly for six great national and 
specific purposes, and yet include or imply no 
duty or authority to effect either of them, is 
too absurd for belief without proof, anil too 
contradictory to be supported by proof. " That 
would be," in the language of Judge Story, " to 
create a power for a certain end, and then deny 
the end intended by the power." 



CHAPTEE IX. 



THE GENERAL WELFARE. 



§ 98. The fifth avowed purpose of the Con- 
stitution was to " promote the general welfare." 
In the history of the government, it has not been 
usual to encounter objections to the Constitu- 
tion, on the ground that it was not suflSciently 
liberal in its grant of powers to the government. 
Of course its friends have not felt themselves 
called upon to propound an elucidation and 
exposition of those parts of it which were most 
likely to call forth objections of the opposite 
character, — already sufliciently abundant, and, 
on account of their ad captandum quality, rather 
than their substantial weight, suiDerabundantly 
troublesome. Such parts have been much more 
liable to be passed over and forgotten. JSTot a 
few stanch friends of the Constitution have, at 
different times, thought it expedient to repu- 
diate and abjure their true and obvious mean- 
ing, force, and validity; while more have been 
willing to overlook and ignore them; and all 
have actually united with its adversaries in 

[126] 



THE GENERAL WELFARE. 127 

abstaining from the legitimate use and salutary 
execution of them; till, in some instances, it has 
even been made a question, whether the right 
to exercise such powers has not been totally lost 
by non user ; or, in other words, whether the 
people have not lost, through the continued 
infidelity of their agents, — the government, — 
the right to have their Constitution executed 
at all. This question we shall not stop to 
discuss. "Litera sciipta manet." 

§ 99. In regard to the words now under con- 
sideration, the efforts of the opposition have 
never been, as with other parts of the Con- 
stitution, to tone doAvn or fritter away their 
meaning; but to construe them out of the Con- 
stitution, and get rid of them entirely. This 
they have rightly considered the only way of 
avoiding the full drift of general authority and 
governmental supremacy included in them. Mr. 
George Mason, however, one of the most de- 
cided opponents of the Constitution, held that 
this was a substantive power, and " that Congress 
should have power to provide for the general 
welfare of the Union." Patrick Henry seems 
to have been of the same opinion.^ Richard 
Henry Lee said these terms seemed to him " to 
submit to Congress every object of human 
legislation." ^ And Mr. Monroe says, " An un- 
qualified power to pay the debts, and provide 

1 3 Elliot's Debates, 442, 690. 

2 Letter to Samuei Adams, Oct. 5, 1787. 



128 THE GENEEAL WELFAEE. 

for the common defence and general welfare, 
. . . would extend to every object in which the 
public could be interested." ^ Mr. Jefferson 
said this " would reduce the whole instrument 
to a single phrase, that of instituting a Congress, 
with power to do whatever would be for the 
good of the United States; and, as they would 
be the sole judges of the good or evil, it would 
be a power to do whatever evil they pleased." ^ 
Mr. Madison asks, " What is the case that would 
not be embraced by a general power to raise 
money ; a power to provide for the general 
welfare; a power to pass all laws necessary and 
proper to carry these powers into execution: 
all such provisions and laws superseding, at 
the same time, all local laws and constitutions 
at variance with them?"^ Mr. Monroe says, 
" A power to provide for the common defence 
would give to Congress the command of the 
whole force and all the resources- of the Union; 
but a right to provide for the general welfare 
would go much further," — meaning, undoubt- 
edly, as is true, that it would go so far as to 
leave nothing beyond, within the scope of legiti- 
mate civil government.* 

§ 100. Mr. Monroe adds, with great assurance, 
as if determined to squelch the whole doctrine, 
by charging it with the ne plus ultra of absur- 

1 Message, May 4, 1822. 

2 Opinion on the Bank, Feb. 15, 1791. 

3 Letter to Stevenson, Nov. 27, 1830. 
* Message to Congress, May 4, 1822. 



THE GENERAL WELFARE. 129 

clity, " It would, in effect, break down all the 
barriers between the States and the general 
government." What barriers has the Constitu- 
tion of the United States erected against itself ? 
None, other than those implied in the duty of 
the general government to administer the Con- 
stitution, and execute the law, upon all the 
inhabitants of the land, whether people or States, 
citizens or aliens, individual or corporate; and 
in the correlative duty of all these to deport 
themselves accordingly. The Constitution con- 
fers no powers of government, and imposes no 
duty to govern, on anybody but its own agents, 
the government of the United States, which it 
makes supreme, as well over the States as over 
the people.^ These gentlemen are all Virgin- 
ians, and State-rights politicians ; and, all but 
one, original opponents of the Constitution, and 
he afterwards an inveterate impugner of some 
of its most important principles. They do not, 
however, any of them attempt to disguise, or 
in any degree to obscure, the magnitude and 
importance of this great power to "provide for 
the general welfare." 

§ 101. But jurists of a more reliable political 
character, and much higher authority, fully en- 

1 " All legislative powers herein granted " — all powers for making 
laws, and declaring what the law shall be — " shall be vested in a Congress 
of the United States." — Sect. L 

" Resistance to constitutional authority, by any of the State function- 
aries, should not be anticipated ; but, if made, the Federal government 
may rely upon its own agency in giving effect to the laws." — Per 
McLean, J., 16 Peters' R. 666. 

9 



130 THE GENERAL WELFARE. 

dorse and confirm these views, so far as respects 
the extent of this great power. Mr. Madison 
calls it " an awkward form of describing an 
authority to legislate in all possible cases ; " ap- 
parently forgetting that they are the precise 
words used by Alexander Hamilton for that ex- 
press purpose, in his original draft of a constitu- 
tion, as reported by Mr. Madison himself. His 
words are, " The legislature of the United States 
shall have power to pass all laws which they 
shall judge necessary to the common defence and 
general . Avelfare of the Union." This was in- 
tended to confer plenary legislative power upon 
Congress in all cases whatsoever; which he con- 
tended they ought to have, subject only to the 
veto of the President, the restrictions of the 
Constitution, and those imposed by the moral 
law and the essential objects of political society. 
§ 102. The foregoing criticisms on the power 
were none of them made with direct reference 
to the enacting clause now under consideration; 
for this they consider to be entirely outside of 
the Constitution not forming any part of the 
law of the land. They refer to the same words 
in the 8th section of the first Article, which, in 
distributing the general powers of the govern- 
ment among the different departments, assign 
to Congress, in some detail, a portion of those 
intended to be exercised by them. These will 
be considered in their proper place hereafter. 
But as to the phrase now in question, as it 



THE GENERAL WELFARE. 131 

stands, iinliniited and unqualified, in this first 
clause of the Constitution, there does not appear 
to be room fi)r a doubt, that " to provide for the 
common defence and to promote the general 
welfare " include every thing that a good gov- 
ernment ought to be called upon to do for the 
benefit of any people. In the words of Mr. 
Madison, " The common defence and general 
welfare embrace every object and act within the 
purview of a legislative trust." ^ They were 
practically so understood by the old Congress 
in administering the confederation, from which 
they were taken. Mr. Madison says, in the 
Federalist,^ " The present [confederation] Con- 
gress have as complete authority to require of 
the States indefinite supplies of money for the 
common defence and general welfare, as the 
future Congress will have to require them of 
individual citizens." 

§ 103. Mr. Justice Story says^ these words 
are " broad enough to include all the purposes 
contemplated by the Constitution ; " referring 
directly to this first clause of the instrument 
now under our examination. Mr. Hamilton* 
says, " The phrase [general welfare] is as com- 
prehensive as any that could have been used; 
because it was not fit that the constitutional 
authority of the Union to appropriate its re- 

1 Veto Message, March 3, 1817. 2 No. 45. 

3 Commentaries, vol. ii. p. 395. * Report on Manufactures in 1791. 



132 THE GENERAL WELFARE. 

venues, should have been restricted within 
narrower hmits than the general welfare; and 
because this necessarily embraces a vast variety 
of particulars, which are susceptible neither of 
specification nor of definition." Mr. Monroe^ 
says, in almost the same words, " More compre- 
hensive terms than ^ to pay the debts, and provide 
for the common defence and general welfare,' 
could not have been used." 

1 Exposition of May 4, 1822. 



CHAPTER X. 



SECURITY OF LIBERTY. 



§ 104. The sixth and last of the avowed pur- 
poses of the people in the establishment of their 
government, and for the accomplishment of 
which they of course intend their government 
shall be responsible, is " to secure the blessings 
of liberty to ourselves and our posterity." Here 
the last and most valued of the natural and 
constitutional rights of the people is placed, 
expressly for security and safety, directly under 
the care and guardianship of the government 
of the United States. The provision is after- 
wards supported and assisted by an auxiliary 
Article, recognizing the common-law right to 
personal freedom, and perpetuating the common- 
law remedy, by habeas corpus, against its in- 
fringement ; and by another, making a direct 
and absolute prohibition of any deprivation of 
it, otherwise than by due process of law. That, 
in the middle of the third generation after the 
adoption of such a Constitution by the American 
people, there should have existed in their midst 

[133] 



134 SEGURITT OF LIBERTY. 

four millions of people, partly of their own 
posterity, mostly natural-born citizens of the 
United States, and universally resident inhabi- 
tants of the land, subject to its government and 
entitled to its protection ; yet forcibly held in 
absolute chattel slavery, destitute of all rights, 
natural or constitutional, and liable to be bought 
and sold like cattle, — is a mortifjdng evidence 
of the mcompetency of written laws, and the 
infidelity of human agencies, to counteract the 
selfishness, avarice, and injustice of men. 

§ 105. This important object of the people 
has obviously failed of its accomplishment, not 
from any defect in the constitutional power dele- 
gated, but from the voluntary abandonment of 
the duty by the government itself. This was 
first done by the first Congress, and repeated 
afterwards as often as the subject, in any form, 
came before them, till the breaking out of the 
rebellion in 1860. 

§ 106. Addresses were presented to the first 
Congress from the yearly Quaker meeting of 
Pennsylvania, N^ew Jersey, Delaware, and west- 
ern parts of Maryland and Virginia, and from 
the Society of Friends in 'New York, " against the 
continuance of the African slave-trade." The 
ordinary motion, to send it to the appropriate 
Committee, was resisted by the whole force of the 
slave interest in the House; not on the ground 
that Congress had no right to interfere with the 
subject, but because it was hostile to Southern 



SECURITY OF LIBERTY. 135 

institutions; betrayed " a dis2:>ositioii towards a 
total emancipation;" would jeopardize the tenure 
and value of property in slaves ; make slaves rest- 
less by exciting hopes of freedom ; and " will fur- 
nish just cause of alarm to the Southern States." 

§ 107. In this debate it was denied that the 
claims of morality or religion formed any good 
ground for Congress to act on the subject; and 
it was said expressly, " that slavery is not only 
allowed, but commended," in the Bible, and that 
our Saviour in particular " has allowed of it." 
The next day, the Memorial of " The Pennsyl- 
vania Society for Promoting the Abolition of 
Slavery" was presented, asserting the doctrine 
of the Declaration of Independence, " that equal 
liberty . . . is . . . the birthright of all men;" 
and praying that Congress " will step to the very 
verge of the power vested in you, for discourag- 
ing every species of traffic in the persons of our 
fellow-men." — (Signed), Benjamin Franklin, 
President. This, and the memorials of the pre- 
ceding day, were taken up together, and again 
debated. Their commitment was opposed by 
the same men, on the same grounds, with an 
additional unfounded assertion, that some of 
them " contained an unconstitutional request." 

§ 108. In this debate the advocates of the 
commitment asked nothing more than a conside- 
ration of the petitions in the ordinary course of 
similar documents, with a view to a fair appli- 
cation of such authority as they might be found 



136 SECURITY or LIBERTY. 

rightfully to possess to the evil complained of. 
Mr. Thomas Scott, of Pennsylvania, made a 
strong intimation, that slavery itself was uncon- 
stitutional. He said, " I cannot, for my part, 
conceive how any person can be said to acquire 
a property in another ; " and he would " sup- 
port every constitutional measure likely to bring 
about its total abolition. ... I do not know how 
far I might go if I was one of the Judges of the 
United States, and those people were to come 
before me and claim their emancipation ; but I 
am sure I would go as far as I could." Mr. 
Madison said, " There are a variety of ways in 
which Congress could countenance the abolition ; 
and regulations might be made in relation to the 
introduction of them into the new States to be 
formed out of the Western Territory." ^ 

1 It is worthy of note that this speech was made in 1790, after slavery 
had been totally proliibited in all the territory north-west of the Ohio, 
and of course must have referred exclusively to territory south of that 
river, viz., Kentucky and Tennessee, which was the only remaining terri- 
tory we then had. 

In another debate in the first Congress, on " Duties on Imports," and 
on the proposition to tax the importation of slaves, Mr. Madison said, 
" Every thing which tends to increase this danger [i.e., internal or exter- 
nal attack], tliough it may be a local aSair, yet if it involves national 
expense or safety, becomes a concern to every part of the Union, and is a 
proper subject for the consideration of those charged with the general 
administration of the government." — 1 Benton's Abr., 75. 

In this debate also the exercise of the power of taxation on the im- 
portation of persons, though expressly given in section 9, was resisted 
with the same acrimony that was always manifested, whenever the sub- 
ject in any form required the consideration of Congress. The consti- 
tutionality or unconstitutionality of any measure on this subject entered 
into their contemplation no further than to consider the use that could 
be made of it in aid of their resistance, determined upon without any 
regard to either. 



SECURITY OF LIBERTY. 137 

§ 109. Mr. Tucker, of South Carolina, said, 
" A general emancipation of slaves by law . . . 
would never be submitted to by the Southern 
States without a civil war." And Mr. Jackson, 
of Georgia, said the subject was " likely to light 
up a flame of civil discord ; for the people of the 
Southern States will resist one tyranny as soon 
as another. The gentleman says, if he was a 
Federal Judge he does not know to what length 
he would go in emancipating these people; but 
I believe his judgment would be of short dura- 
tion in Georgia. Perhaps even the existence 
of such a Judge might be in danger." All the 
opponents of the motion represented the intro- 
duction of the subject as an attack on the 
South ; " on the palladium of their property ; " 
on their character, their morals, their humanity, 
their " religion and piety." All the pernicious 
effects attributed to it were charged to the in- 
terference of Congress ; to their taking any 
cognizance of the subject ; to their using or 
exercising any of their admitted constitutional 
rights having any relation to it ; or even to 
their inquiring whether they had any such rights, 
or what they were, — and not to any thing ob- 
jectionable in the character of any measure it 
might be proposed to adopt. They therefore 
put themselves on the defensive, and resisted 
every attempt, in any form, to take any cogni- 
zance of the petitions, even for the j)urpose of 
inquiring into the nature of their own rights 



138 SECURITY OF LIBERTY. 

and duties. Whatever these might be, they 
were determined none should be exercised, if by 
any means they could prevent it. ^Nevertheless 
the vote passed "to commit," by forty-three to 
eleven, which was probably about the proj)ortion 
of those who were originally willing to consider 
and do what might be found proper, to those 
who were from the beginning determined that 
slavery should not be meddled with at any rate. 

§ 110. The Committee, which, with the excep- 
tion of one Virginian, was composed entirely of 
Northern members, made a report, worse than 
nothing for any national purpose, which came 
up, in a few weeks, for discussion in Committee 
of the Whole. The subject was again debated, in 
the same temper as before; and the resolutions 
of the Committee, after being razeed substan- 
tially to a simple disclaimer of any " authority 
to interfere in the emancipation of slaves or in 
the treatment of them in any of the States," 
were reported, with the amendments, to the 
House, and there taken up for final disposition 
by a majority of one vote; where, by a majority 
of four votes, they were ordered to be entered 
on the Journal, but were never afterwards called 
up or otherwise acted upon. The slaveholders 
voted against the whole proceedings throughout, 
though the purport of them was to yield the 
whole subject to their own control. Many 
Northern members voted with them, in the 
negative; either because they chose to yield to 



SECURITY OF LIBERTY. 139 

Southern clamor, or because they thought the 
proposition worse than nothing. So that in 
the same House where, a few days before, there 
was a majority of thirty- two, or about four- 
fifths of the whole number, in favor of appro- 
priate action, there was now but a bare majority 
in favor of allowing the Journal to show that 
the subject had been before them, and that they 
did nothing. But the maxim, JEx niliilo nihil fit, 
was not sustained. Colonel Benton, from whose 
" Abridgment of the Debates " this account 
has been extracted, remarks sagaciously at the 
close, " These proceedings put an end to aboli- 
tion petitions in Congress." And well they 
might. 

§ 111. In the next (second) Congress, how- 
ever, the subject came again before them, on the 
j)etition of Warner Mifflin, which was voted " to 
be returned to him." Mr. Ames, who presented 
it, said, " It was his opinion, which he had ex- 
pressed to the House long ago, that this govern- 
ment could not- with proj)riety take any steps in 
the matter referred to in this petition. . . . He 
considered it totally inexjDedient to interfere with 
the subject." Mr. S. Livermore did not " believe 
there was any disposition to bring it forward." 
In the great debate of 1830, Mr. Webster said, 
that, after the above-mentioned proceedings of 
the first Congress, it had " never been main- 
tained or contended at the ^N^orth, that Congress 
had any authority to regulate or interfere with 



140 SECUEITY OF LIBERTY. 

the condition of slaves in the several States. 
'No I^orthern gentleman, to my knowledge, has 
moved any such question in either House of 
Congress." 

§ 112. This abandonment was carried so far, 
that, at the close of the session of 1860-61, after 
most of the Southern States had passed their 
ordinances of secession, and met in convention 
to organize their Confederacy, leaving Congress 
with a large majority of Republicans and friends 
of the incoming Administration, the House of 
Representatives passed, by a unanimous vote, 
the following declaratory Resolution : — 

" Resolved^ That neither the Federal govern- 
ment nor the people, or the governments, of 
the non-slaveholding States, have the right to 
legislate upon or interfere with slavery in any 
of the slaveholding States in the Union." And 
the two Houses, by more than a two-thirds vote 
of each, proposed to make the abandonment 
perpetual by the following addition to the Con- 
stitution : — 

" No amendment shall be made to the Consti- 
tution, which will authorize or give to Congress 
the power to abolish or interfere, within any 
State, with the domestic institutions thereof, in- 
cluding that of persons held to labor or service 
by the laws of said State." 

Afterwards President Lincoln, in his inau- 
gural address, volunteered his approval of the 
proposition. 



SECURITY OF LIBERTY. 141 

§ 113. The subject was discussed, in some 
aspect of it, not less than six times during 
Washington's Administration, and as often or 
oftener in the subsequent Administrations, — 
always in the same arrogant, aggressive, and 
threatening temper on the part of the South, 
and in the same yielding, compliant, and apolo- 
getic style on the part of the JSTorth, till Mr. 
Calhoun announced the determination to force 
the ^orth to an issue.^ As the government was 
substantially in the hands of the South, those 
Northern men who modestly wished to stand 
well with the powers that be, endeavored as far 
as possible to place their disposition to leave 
the subject in the hands of the State govern- 
ments, on the ground of political expediency; 
while the more ambitious aspirants for Southern 
favor have not hesitated to assert, that " Con- 
gress has no right to interfere with slavery in 
any State, " — really, that the slavery or freedom 
of the citizens of the United States must be 
settled by State laws, and that the government 
or Constitution of the United States had no 
rights or duties on the subject; thus abrogating 
or repealing the whole Constitution, so far as it 
relates to "^^ securing the blessings of liberty." 

§ 114. Before 1860, this sentiment had come 
to be considered and admitted as binding on 
the politicians as if it had actually made a part 

1 See Benton's Thirty-years' View, and liis Examination of the Dred- 
Scot Case. 



142 SECURITY OF LIBEETY. 

of the Constitution. Congress had repealed all 
the prohibitions against carrying slavery into 
any of the Territories of the United States, 
and establishing and sustaining it there ; and 
the Supreme Court had decided, in the Dred- 
Scot Case, that any citizen had a constitutional 
right to do so, and neither Congress nor any 
body else had any power to prevent it. TJie 
same principle was equally applicable to the 
States. At this stage of their progress, when 
there seemed to be nothing left for the slave- 
mongers to demand, the people saw fit to elect 
a new chief magistrate, Avho, in relation to the 
rights of the government over the Territories, 
entertained some opinions at variance with the 
recent practice of Congress, and the more recent 
decision of the Supreme Court; and thereupon 
the whole South rushed directly into rebellion, 
notwithstanding they controlled large majorities 
in both Houses of Congress, to prevent any 
legislation adverse to their wishes. 

§ 115. The new Administration also, including 
the President and leading members of Congress, 
after the abdication of the Southern members, 
and during the principal part of the war, held 
steadfastly to the same dogma of State rights 
over slavery.-^ That it was well understood, at 
its original introduction, to have no foundation 
in the Constitution, is manifest from the facts, 
that congressional action on the subject was not 

1 See Eaymond's Life of President Lincoln, p. 240. 



SECURITY OF LIBERTY. 143 

resisted on constitutional ground, and was sus- 
tained by a vote of almost five to one, against 
such specious objections as an interested min- 
ority could invent. It seems to have been 
resorted to only as an expedient to cover up the 
abandonment of moral principle to appease an 
unjust claim; which claim itself constantly in- 
creased in force, by indulgence, till it was thought 
strong enough to refuse all compromise and 
overturn the Constitution, and thereby save the 
trouble of overruling it. The dogma never was 
sustained by any valid argument as a constitu- 
tional doctrine, but only by personal and party 
pledges, exacted and enforced, on political 
grounds, by the overwhelming influence of the 
slaveholding interest in the country. 

§ 116. But the power of the general govern- 
ment to " establish justice . . . and secure the 
blessings of liberty " to all the people and their 
posterity, though so long abandoned and even 
disclaimed, is still in the Constitution, and is as 
important to be asserted and enforced as it was 
originally to be incorporated there. It is true 
the State governments may do this; and it is 
also true that they may not do it. It is equally 
true, that it may be done without the action of 
any government. But in neither case is the 
right or duty of the general govermnent dimin- 
ished or aff'ected. 

§ 117. Mr. Madison says,^ " The powers re- 

1 Federalist, No. 45. 



144 SECURITY OF LIBERTY. 

served to the several States will extend to all 
the objects which, in the ordinary course of 
affairs, concern the lives, liberties, and proper- 
ties of the people, and the internal order, im- 
provement, and prosperity of the State." Mr. 
Hamilton -^ speaks of " the ordinary administra- 
tion of criminal and civil justice " as " belonging 
to the province of the State governments." Mr. 
Jefferson^ says, " The States individually have 
the principal care of our persons, our property, 
and our reputations, constituting the great field 
of human concerns." Chancellor Kent says,^ 
" The vast field of property, the very extensive 
head of equity jurisdiction, and the principal 
rights and duties which flow from our civil and 
domestic relations, fall within the control, and 
we might almost say the exclusive cognizance, 
of the State governments." And Judge Story 
says,* " They [State governments] possess the 
immediate administration of justice in all cases, 
civil and criminal, which concern the property, 
personal rights, and peaceful pursuits of our 
citizens. They have a full superintendence and 
control over the immense mass of local interests 
of their respective States." 

§ 118. By none of this,- however, do they, or 
any of them, mean that the general government 
have nothing to do with these subjects, or that 
they are delegated by the Constitution to the 

1 Federalist, No. 17. 2 First Message to Congress in 1801. 

3 1 Com. 418. 4 1 Com. 488. 



SECURITY OF LIBERTY. 145 

States; but simply that they are not withdrawn 
from State jurisdiction, or prohibited by the 
Constitution to the action of the State govern- 
ments. They consequently remain where they 
were, and, " in the ordinary course of afiairs," 
may continue so. Powers delegated to the gen- 
eral government, if not expressly or impliedly 
prohibited to the States, may be used by them 
when not used by the United States, on the 
same principle that individuals may do as they 
please in any matter not contrary to law. The 
States are recognized as governments, and, when 
their own constitutions permit, may do as they 
please; provided they do not interfere with the 
Constitution and laws of the United States, or 
with the civil or natural rights of the people 
recognized thereby, and held in conformity to 
them. The right of every person to " life, lib- 
erty, and property," to " keep and bear arms," to 
the " writ of habeas corpus,'''' to " trial by jury," 
and divers others, are recognized by, and held 
under, the Constitution of the United States, and 
cannot be infringed by individuals or States, or 
even by the government itself. 

§ 119. It is not claimed that the State gov- 
ernments have any inherent, exclusive right, 
or constitutional grant of power, on any of 
these subjects. The Constitution of the United 
States grants them nothing.^ The people of the 

1 " The Constitution does not grant to the States the power of passing 
bankrupt laws, or any other power." ..." When the American people 

10 



146 SECUEITY OF LIBERTY. 

separate States grant them all the legislative 
power they have to grant; bnt of course nothing 
inconsistent or incompatible with what they had 
before, in common with the rest of the people 
of the United States, delegated to the general 
government; for the very obvious reason, that it 
was already given away, and was no longer 
theirs to bestow. What the Constitution ex- 
pressly prohibits to the States, or what it im- 
pliedly prohibits, by an exclusive grant to the 
United States, or otherwise, the State govern- 
ments cannot do. But what is prohibited to 
them only by means of the supremacy of the 
acts of the general government, they may do 
when there are no such acts applicable to the 
subject; on the universal principle, that all things 
are lawful which violate or infringe no law. 

§ 120. The Constitution seems, in terms, to 
make all its powers exclusive, by reserving^ 
neither to the States nor to the people any thing 
which is delegated to the United States. "What 
is given away, delegated, is not reserved ; and 
of course cannot be used, re-granted, or dele- 
gated to any body else. This would prohibit 
the States from doing any thing that the general 
government is authorized to do. Strict con- 
created a national legislature, with certain enumerated powers, it was 
neither necessary nor proper to define the powers retained by the States. 
These powers remained as they were before the adoption of the Consti- 
tution, except so far as they may be abridged by that instrument." — Per 
Marshall, C. J., in Sturgis v. Crowningshield, 4 Wheat. R. 

1 See 10th Amendment. 



SECURITY OF LIBERTY. 147 

stiTictionists, if true to their own principles, 
would hold to this steadfastly, which would 
surely shut up the State governments to very 
narrow limits indeed. But the judicial construc- 
tion has been much more liberal; and where a 
subject is distinctly assigned to the general 
government, yet if they neglect to regulate it, 
the State governments may do so, and their acts 
are valid.^ 

§ 121. On any just principles of reasoning, it 
is impossible to Consider the general government 
unauthorized to do any thing that the people 
assert they made it on purpose to do. When 
they say that they made it on purpose, " in 
order " to accomplish certain specified objects, 
those objects are ipso facto submitted to its 
jurisdiction, and may be accomplished by any 
means under its control; and not only all speci- 
fied powers, but all other necessary means, are 
expressly placed at its control, for the very pur- 
pose of executing the jurisdiction so vested in 
it. When the Constitution requires an end, it 
authorizes all the means of the government to 
be applied to it; and, when it directs means, it 
authorizes their application to any constitutional 
end. 

§ 122. The general government, then, are re- 
quired by the people, and actually bound, " to 
form a more perfect Union, establish justice, 

1 Sturgis V. Crowningshield, 4 Wheat. Rep. ; and Ogden v. Saunders, 
12 Wheat. Rep. 



148 SECURITY OF LIBERTY. 

insure domestic tranquillity, provide for the com- 
mon defence, promote the general welfare, and 
secure the blessings of liberty to ourselves [all 
the people] and our posterity." These are the 
powers vested, and all the powers originally 
vested, in the whole government generally ; in 
distinction from those specially assigned in de- 
tail to the several departments and officers of 
the government, on the division and distribution 
of the general powers among them. Such is 
the purport and effect of this first part or 
enacting clause of the Constitution. The sub- 
sequent Articles and sections proceed to arrange 
the organization of the government, with its 
different departments and officers; and to distri- 
bute among them such portions of those general 
powers as appropriately fall to the share of 
each, together with such further additions, regu- 
lations, qualifications, and restrictions, as were 
thought appropriate to the great purposes and 
objects of a firm national government, adequate 
to the exigencies of government and the preser- 
vation of the Union. 



CHAPTEE XL 



THE OKGANIZATION. 



§ 123. We have seen, that the people of the 
United States, hi accordance with the resohition 
of the Confederation Congress by which the 
Convention was assembled, by ordaining and 
establishing this Constitution, have formed and 
instituted a " Firm National Government," which 
it calls the " Government of the United States," 
" in order " to accomplish the six great purposes 
announced in the ordaining or enacting clause; 
and which render the government "^idequate " 
not only to " the preservation of the Union," 
but also to all the " exigencies of govern- 
ment." Its duty is to execute the Constitution, 
and its powers are commensurate with the duty. 
This government is divided into three depart- 
ments, the Legislative, Executive, and Judicial; 
and the first three Articles next following the 
enacting clause disclose the mode of organizing 
each of these departments, and describe in gene- 
ral terms, and by reference to many examples, 
that portion of the whole duty of such a govern- 

[149] 



150 THE LEGISLATIVE DEPARTMENT. 

ment, which falls appropriately to each of those 
departments. 

THE LEGISLATIVE DEPAETMENT. 

§ 124. The legislative department is organized 
in two branches, called the Senate and House 
of Representatives, and named the " Congress 
of the United States." ^ The House of Repre- 
sentatives^ is composed of members chosen every 
second year by the people of the several States. 
The people of the several States are that por- 
tion of the citizens of the United States who 
are the resident inhabitants of particular States. 
These constitute the body represented, and from 
among whom the Representative must be select- 
ed; but though the Representative is said to be 
" chosen by the people," yet all the people are 
not necessarily and under all circumstances 
actual electors. Electors may be subject to 
regulations, and required to have other qualifi- 
cations ; that is, to conform to law in other 
respects than mere citizenship, being of the 
people, meml^ers of tlife body j)olitic. Though 
all citizens are not voters under all circum- 
stances, in all places, and at all times, yet no 
aliens or others not citizens can be under any 
circumstances, because by the Constitution the 
Representatives must be chosen only by " the peo- 
ple, — the citizens ; " and who they are, whether 

1 Article I., section 1. 2 Article I., section 2. 



THE LEGISLATIVE DEPARTMENT. 151 

by birth or naturalization, depends on the laws 
of the United States. 

§ 125. The qnalifications of electors of Repre- 
sentatives, other than habitancy and citizenship, 
may be prescribed by law; but they must "have 
the qualifications requisite for electors of the 
most numerous branch of the State legislature." 
This provision has been claimed as absolutely 
conferring the power to fix the qualifications of 
electors on the State legislatures. But this is 
obviously a misconstruction. It neither grants 
nor restricts the power to any body. As it 
stands, it would comport well, and be perfectly 
consistent, with an addition giving the power 
expressly to either government. Such an addi- 
tion not being made, the clause leaves the power 
as it found it, unprovided for in this place; and, 
if not provided for elsewhere in the Constitution, 
it remains with the other " powers not delegated 
. . . nor prohibited," but " reserved to the States 
respectively or to the people." We shall find, 
however, that it is provided for elsewhere. This 
is the plain and palpable efiect of the clause as 
it here stands by itself alone; and it is further 
corroborated by the fact, that in. its original 
form, as reported by the Committee of Detail, 
it was objected to by Mr. Governeur Morris on 
this precise ground, that, " as it stands, it makes 
the qualifications of the national legislature 
depend on the will of the States ; " and that the 
revised draft, which altered it essentially, and 



152 THE LEGISLATIVE DEPARTMENT. 

probably on this very account, so as to read as 
it now does in the Constitution, was made by 
Mr. Morris himself.^ 

§ 126. The word " requisite '' has no necessary 
relation to the legislative power of the States, 
any more than to that of Congress. It might 
refer to eithei^ or to neither. If the State legis- 
latures have the exclusive power of deciding 
what qualifications are "requisite" for electors of 
their " most numerous branch," they may decide 
that none are ; and so open the elections to 
aliens as well as citizens, which would be con- 
trary to the Constitution. Or they may decide 
that their "most numerous branch" shall be ap- 
pointed by the governor and council, or by the 
Senate, or by the county courts, or otherwise; 
and so not elected by the people at all. ]^either 
the Constitution nor any law of the Union re- 
quires expressly that either branch of a State 
legislature shall be elected by the people. But 
it does require that the State government shall 
be republican, and that Representatives to Con- 
gress shall be chosen by the people, and inci- 
dentally that State Representatives shall also ; 
for otherwise the qualifications of the electors 
of the two sets of Representatives would, in this 
respect, be diflerent; and could not be the same 
or identical, as the Constitution is understood to 
require. When Congress undertake to prescribe 
a republican government to the States, and of 

1 See 3 Madison Papers, and 5 Elliot's Debates. 



THE LEGISLATIVE DEPARTMENT. 153 

course determine what is such a government, 
they will be as likely to decide what kind and 
what portion of the people shall participate in 
the suffrage, and under what regulations and 
restrictions, as they will to decide what part of 
the governmental officers shall be chosen by 
popular election. 

§ 127. If " the most numerous branch of the 
State legislature " are not chosen by the people 
at all, or only by a small and privileged class of 
them, what becomes of the Representatives to 
Congress, on the theory that they must be 
chosen by the same electors ? And what be- 
comes of the republicanism of the Constitution, 
or even of the existence of the government, if 
the States, or any other party than the govern- 
ment itself, can thus control or abrogate the 
elections of the Kepresentatives of the people? 
It is obvious that such a construction cannot be 
the true one, for with it the government cannot 
stand. As the Re^jresentatives to Congress 
must be chosen " by the people of the . . . 
States," and " the electors shall have the qualifi- 
cations " [all the qualifications] " requisite for 
electors of the most numerous branch of the 
State legislature ; " it follows inevitably, that 
citizenship and residence or habitancy, the two 
ideas that constitute " people of the State," are 
two of the " qualifications " equally " requisite " 
for both sets of electors, by the Constitution 
itself, without and independent of any regula- 



154 THE LEGISLATIVE DEPARTMENT. 

tion by either government. The only question, 
therefore, is regarding other qnaUfications than 
habitancy and citizenship. "Whatever these may 
be, it is evident they cannot enlarge the list, or 
mclude any who have not those two qualifica- 
tions. It then results that the additional quali- 
fications are only restrictions on the rights of 
resident citizens; and the true inquiry is, what 
restrictions may be constitutionally imposed by 
any body? or, in other words, what kind and 
what portion of the " people of the State " may 
be excluded from the suffrage? 

§ 128. This question looks directly to the 
republicanism of the State, and is expressly 
delegated to the general government. If the 
general government do not define it or prescribe 
the rule, and so long as they do not, no doubt 
the State governments may, in the same manner 
and by the same right that they do other things 
not inconsistent with the Constitution and laws 
of the United States; though the power of 
ultimate control is expressly delegated to the 
general government. " This clause means that 
the States shall determine [in the first instance], 
not who shall vote, but when, how, and where 
the electors shall vote; and that they may deter- 
mine the time, place, and manner in which they 
shall vote, and impose restrictions [regulations], 
not disfranchisement."^ And even this Con- 
gress may overrule. 

1 Senator Yates's speech in the Senate, Feb. 19, 1866, on section 4. 



THE LEGISLATIVE DEPARTMENT. 155 

§ 129. The citizen, though his right as such 
cannot be denied except on forfeiture, is yet 
bound, in the exercise of this as of all other 
rights, to conform to such regulations and qua- 
lifications of his right as the purity of the 
elections, and their adaptation to effect their 
legitimate purposes in the administration of the 
government, may be judged by the law-making 
power to require. He cannot vote when, where, 
and for what officers he pleases, but must con- 
form to the law. So in regard to preliminary 
residence, registration, caj)acity to understand 
and perform the duty, &c., he must conform to 
the law. How far such regulations may go, so 
as substantially not to derogate from the con- 
stitutional right of suffrage as a citizen, is not 
susceptible of exact definition. But the line, 
wherever it is found, may not be passed. If 
any imbecile portion of the people are thus 
debarred, by the laws of nature, from exercising 
the right personally, they may receive the bene- 
fit of its exercise through the guardianship of 
their imbecility which the same laws of nature 
have provided. Whatever regulations of this or 
any other kind may constitutionally be adopted, 
b}^ State legislatures or otherwise, are, by Article 
I., section 4, under the control of Congress. If 
a State government may disfranchise a citizen 
because he is black, or for any other cause, they 
may because he is an officer, agent, soldier, or 
servant, in the pay and employment of tlie 



156 THE LEGISLATIVE DEPARTMENT. 

United States; or even because he is loyal and 
under oath to support the Constitution : and thus 
banish the government, and every department 
and officer thereof, out of their jurisdiction. 

§ 130. The qualifications of Representatives 
are actual residence, seven years of citizenship, 
and twenty-five years of age. Every State shall 
have at least one Representative ; and the 
others shall be apjDortioned among the States, 
according to numbers, counting every freeman, 
except Indians not taxed, and three-fifths of all 
others. But the whole representation shall not 
exceed one for every thirty thousand; and the 
enumeration shall be made every ten years. 
Wlien vacancies happen in the representation of 
any State, the executive authority thereof shall 
issue writs of election to fill such vacancies. 

§ 131. There is an ambiguity in the mode of • 
apportionment of Representatives, arising from 
the uncertainty of the meaning of the word free, 
or free persons. It may be the correlative of 
alien, slave, or bond. At the time of our Revolu- 
tion, and afterwards, it was usual to enfranchise 
citizens, members of the body politic, by legal 
forms, involving a record, an oath, or other 
formalities; whereby individuals were admitted 
members, constituted freemen, and entitled to 
all the rights of citizenship. In this way persons 
were said to be free of a city. State, or corpo- 
ration, — to be freemen, or to have the freedom 
tjiereof ; meaning that they had a right to the 



THE LEGISLATIVE DEPARTMENT. 157 

franchise of membership or citizenship. Such 
joersons were called free, or freemen, in distinc- 
tion from outsiders, aliens or others, who were 
destitute of the franchise. Others were called 
free in contradistinction from slaves, who were 
held as property, mere chattels, having no 
rights, personal or political. In this sense.it 
included everybody who had rights of any sort, 
or were not slaves. Another use of the word is 
in opposition to bond. Persons are said to be 
bond or free, in reference to some kind of legal 
obligation by which some are held, and from 
which others are free. In this sense free per- 
sons would mean those who were under no legal 
l3ond or obligation to anybody, in distinction 
from those who were so bound. 

§ 132. In this place it is of no consequence 
what is the meaning of the word free, only as it 
settles the dividing line between that portion of 
the citizens — " people of the several States " — 
who are to be counted as units, and that other 
portion who are to be counted as fractions. In 
some other respects, it may have more impor- 
tance. It will be observed that they are all 
citizens, — people of the several States," — how- 
ever counted; because they are the only persons 
represented, by whom the Representatives are 
chosen, and according to whose numbers the 
Representatives are apportioned; and no others 
could be counted at all. It ought to be re- 
marked, however, that in practice this principle 



158 THE LEGISLATIVE DEPARTMENT. 

has not been observed. The census or decennial 
enumeration has always included all the actual 
inhabitants of the land, except " Indians not 
taxed," whether aliens or slaves or both, without 
any regard to citizenship. Perhaps this is con- 
sistent with the words of the Constitution, 
though it is a manifest departure from principle, 
and ought to be corrected in practice, by mak- 
ing the law to restrict the enumeration to " the 
people [citizens] of the State," who alone can 
be represented in fact, according to the first 
section, and who alone on republican principles 
are entitled to be represented.^ The census law, 
therefore, ought to be so amended as to take 
the aliens in a separate list, and exclude them 
from the enumeration of those on whose num- 
bers the apportionment of Representatives is to 
be predicated. If the statute does not direct 
in this matter, it leaves it to the preference of 
the executive officers. 

§ 133. Free jjersons and otJier 2^^ifSons are all 
persons ; that is, all " the people of the several 
States." Who are " the peojDle," the citizens, 
this clause does not assist in determining. But 
we know from other sources, that neither aliens 
nor slaves can be, till the disabilities of alienage 
and slavery are removed by naturalization and 
emancipation respectively, when they are aliens 
and slaves no longer. The law that confers a 
new status abolishes the disabilities of the old. 

1 An alien is not an inhabitant. — College v. Gove, 5 Pick. R. 373. 



1 



THE LEGISLATIVE DEPARTMENT. 159 

The law that should incorporate aliens and 
slaves with citizens, making them and counting 
them as "people of the several States," would 
confer a new status, and thereby not only abolish 
the disabilities of alienage and slavery, but ex- 
tinguish the status which constitutes them. 

§ 134. The franchise or right to be a citizen 
puts an end to whatever would prevent it. If, 
therefore, this provision of the Constitution 
authorizes the counting those who were aliens 
or slaves in the class of " all other persons," it 
thereby terminates their alienage or slavery, and 
transfers them directly to the class of the free, 
by conferring the franchise which makes them 
citizens. But there are decisive reasons for be- 
lieving that the " people of the United States " 
intended no such thing in regard to either. As 
to the disabilities of alienage, they have made an 
express provision for the method of their re- 
moval, which of course they could not have 
intended to render nugatory by abolishing those 
disabilities altogether in this sweeping clause. 
As to slaves or slavery, the Constitution con- 
tains no intimation, admission, or recognition 
that there was or could be any such class 
under its jurisdiction, but ignores them entirely. 
Of course it did not intend, in this indirect way, 
to abolish or destroy what it knew nothing 
about, and of which it did not even admit the 
existence. , 

§ 135. By the phrase " including those bound 



160 THE LEGISLATIVE DEPARTMENT. 

to service for a term of years," it appears that 
some persons, not strictly and properly belong- 
ing to the class of free persons, are directed 
expressly to be placed in that class. The eifect 
of this form of expression is to add to the class 
described some who wonld otherwise be ex- 
cluded. If you say of persons twenty-one 
years of age, including those who have red hair, 
it is insensible and unmeaning; because those 
who have red hair were included before, as well 
as those who have black hair. But if you say 
of persons twenty-one years of age, including 
those who will complete their twenty-first year 
before Christmas, this is intelligible, and adds 
to the list those who would otherwise be ex- 
cluded. So when you speak of free persons, 
including those bound to service for a term of 
years, you add some who were not otherwise 
included. This cannot mean aliens ; because, 
whether they are or are not free in the sense of 
the Constitution, as aliens, they are no more or 
less so for being under bonds for a term of years. 
If they are not included without being under 
bonds, they are certainly no more free, by being 
under bonds for a term of yeai'S. So they cannot 
be added on account of this qualification. If 
alienage excludes them, they are aliens still. 
If it does not exclude them, they are not added 
by their bonds. 

§ 136. This cannot mean slaves, because per- 
sons " bound to service for a term of years " are 



THE LEGISLATIVE DEPARTMENT. 161 

not slaves, and never were so considered any- 
Avhere. All such are free, in the sense of the 
Constitution, and included, independent of this 
clause. So they are not added by it. 

The other phrase, " excluding Indians not 
taxed," is of a similar character. It excludes 
those who would otherwise be included. Indians 
are free-, whatever may be the constitutional 
sense of the word. They are free in opposition 
to slave, certainly; and they are equally so in 
opposition to hond,, for they are under no kind 
of bonds to any body. And they are free in 
opposition to alien; for they are natural-born 
citizens of the land, and so have the best pos- 
sible franchise. They would necessarily be in- 
cluded, but for this express exclusion. 

§ 137. If the second class, " all other persons," 
are aliens, then the effect of this provision would 
be to take a portion of the aliens, and make 
them free^ — put them into the first class ; and 
the ground of discrimination would be the bond 
to temporary, instead of permanent, service. 
Aliens as such are not bound at all ; but if any 
of them are so, and a part of these are to be 
favorably distinguished from the rest in respect 
to citizenship, it would be those most perma- 
nently bound. For those bound permanently 
would at least be permanent residents, while 
those bound for " a term of years," which means 
any definite time, whether days, weeks, months, 

or years, might soon go back to the land from 

11 



162 THE LEGISLATIVE DEPARTMENT. 

whence they came. But bondage of any sort 
has no relation to ahenage ; and, if the idea had 
been to take a portion of the aUens and put 
them among the free, they would not have been 
selected with reference to their being or not 
being bound to service or any thing else, nor 
with reference to the time the bond had to run ; 
but with reference to age, property, education, 
business, or some other qualification for good 
citizenship. 

§ 138. If the second class, " all other persons," 
are slaves, then the purport of this provision 
would be to take a part of the slaves, the second 
class, and make them free persons, — place them 
in the first class. But if a slave can be bound 
at all, or be under any obligation, he certainly 
cannot be bound temporarily. ISTo man can be 
a slave for a term of years, because this would 
give him a right to have his slavery terminate 
when the years were ended. But a slave cannot 
hold this right, and be a slave, any more than 
he can hold any other right, and retain the same 
status. So that, on the supjDOsition that the 
second class are slaves, the provision in favor 
of those bound for a term of years means 
nothing, transfers nobody to the other class, and 
is altogether nugatory. So the second class, 
" all other persons " thanyree persons, are neither 
aliens nor slaves. 

§ 139. The correllative of free, as here used, 
is hond; and the two classes are free persons 



THE LEGISLATIVE DEPARTMENT. 163 

and hound persons. A man may be imder a 
legal obligation, or be hound to do any thing; 
but the hond here intended is doubtless for per- 
sonal service, and a part of those under this 
kind of legal ho7id are transferred to the first or 
free class, on account of the definite termination 
of their hond. A definite term is not necessarily 
shorter than an indefinite one, but is considered 
more favorable to the obligor, on account of 
the certainty of its termination. The difference 
does not relate to the character of the honds^ 
either as to the nature of the duty or obligation 
enforced by them, or the length of time they 
may continue; but only to the definite or in- 
definite time of their termination. 

§ 140. The bonds must be legal, for the ques- 
tion concerns only legal rights. They must 
enforce legal if not moral duties and obligations, 
or they are not legal bonds. It will not be pre- 
tended, that a mere forcible holding to com- 
pulsory service, without right, legal or moral, 
creates any duty or obligation, or forms any 
legal hond whatever. A slave can assume 
neither, nor can he incur or be subjected to 
eithei*. The same law that makes him a slave 
deprives him of all rights and absolves him from 
all duties. He can owe nothing, nor be under any 
legal bond or obligation, because he is deprived 
of all capacity to be so, or to perform if he was 
so. He cannot even owe " service or labor," be- 
cause his service or labor, and even his body, is 



164 THE SENATE. 

not his own. So that slaves cannot be included 
among the persons " bound to service," because 
they cannot be under any such obligation, or 
owe any such duty. They cannot be among the 
class of " other persons " than " free persons," 
because both classes are citizens, " people of the 
several States • " and slaves cannot be so, for 
want of franchise or right, which they cannot 
hold any more than any other right, natural or 
constitutional. 

§ 141. There is yet another reason why slaves 
cannot be intended by either classification; which 
is, because there are none, and can be none, 
under the jurisdiction of our government. The 
Constitution was made " to secure the blessings 
of liberty." It perpetuates the right to liberty 
by perpetuating the common-law right to the 
" writ of Jidbeas corpus,''^ which restores liberty 
whenever it is infringed. And it declares that 
" no person shall be deprived of . . . liberty . . . 
without due process of law." So there can be 
no slaves in the land. There never was, and 
never can be, a person legally held in slavery 
under our Constitution. This principle is now 
[1865] fully recognized by the thirteenth Amend- 
ment. 

THE SENATE. 

§ 142. The other branch of the legislative 
department is called the Senate,^ and is com- 

1 Section 3. 



THE SENATE. 165 

posed of two Senators from each State, chosen 
by the legislature thereof, for six years, each 
having one vote; and the body so classified, that 
one-third of the whole number go out every two 
years. If vacancies happen during the recess 
of the legislature of any State, the executive 
thereof may make temporary appointments until 
the next meeting of the legislature, which shall 
then fill such vacancies. If the legislature ad- 
journ without filling the vacancy, it has been 
questioned whether the place can be otherwise 
filled. But it is difficult to see why, when the 
legislature, by adjourning without making an 
appointment, create a vacancy, this is not a va- 
cancy occurring or happening during the recess, 
and so to be filled by a new executive appoint- 
ment. Such a vacanc}^ certainly did not "hap- 
pen" till the State legislature had adjourned; for 
the appointment held good till the adjournment. 
It must, then, have happened " during the re- 
cess," and so should be filled by a new executive 
appointment. It has been held by the Senate, 
that a legislative appointment, made by the body 
in office when the vacancy occurred, supersedes 
an appointment made by a prior legislature in 
anticii^ation of the vacancy. A Senator must 
be thirty years of age, have been nine years a 
citizen of the United States, and when elected 
be an inhabitant of the State for which he is 
chosen. 



166 THE SEPAEATE POWERS. 

THE SEPAEATE POWEES. 

§ 143. The separate powers of the Senate and 
House of Representatives are specified in dif- 
ferent sections of the first Article. Each House 
shall choose its own officers, except the " Presi- 
dent of the Senate;" and he the judge of the 
elections, returns, and qualifications of its own 
members. ^This is in the nature of a judicial 
power, and should be regulated by known prin- 
ciples of law. Each House may not make I'ules 
prescribing the time, place, and manner of elect- 
ing their members, or how, when, and by whom 
they may be elected ; but they may judge 
whether the election, when made, was in con- 
formity to such rules as were prescribed by law. 
A majority of each shall constitute a quorum to 
do business. This has been held to be a majority 
of the members actually sworn in and entitled 
to seats at the time, and not a majority of possi- 
ble members, or a majority of a full delegation 
from all the States. But a smaller number may 
adjourn from day to day, and may be authorized 
to compel the attendance of absent members, in 
such manner and under such penalties as each 
House may provide. Each House also deter- 
mines the rules of its proceedings, and can 
punish its members for disorderly behavior ; 
and, with the concurrence of two-thirds, expel a 
member. They shall each keep a journal of its 
proceedings, and from time to time publish such 



THE SEPARATE POWERS. 167 

parts as do not require secrecy; and enter there- 
on the yeas and nays on any question, when 
desired by one-fifth of the members present. 

§ 144. The members of both Houses shall re- 
ceive a compensation for their services, to be 
ascertained by law; and shall be privileged from 
arrest during their attendance at the session of 
their respective Houses, and in going to and 
returning from the same, except in cases of 
treason, felony, and breach of the peace; and, 
for any speech or debate in either House, shall 
not be questioned in any other place. Ko 
Senator or Representative shall, during the time 
for which he was elected, be appointed to any 
civil office under the authority of the United 
States, which shall have been created, or the 
emoluments whereof shall have been increased, 
during such time; and no person holding any 
office under the United States shall be a mem- 
ber of either House during his contmuance in 
office. 

§ 145. The House of Representatives shall 
have the sole power of impeachment, and shall 
originate all bills for raising revenue; but the 
Senate may propose amendments to revenue 
bills, as in other cases, and shall have the sole 
power to try all impeachments. When sitting 
for that purpose, they shall be on oath or affirma- 
tion. When the President of the United States 
is tried, the Chief Justice shall preside; and no 
person shall be convicted without the concur- 



168 THE SEPARATE POWERS. 

rence of two-thirds of the members present. 
Judgment in cases of impeachment shall not 
extend fm'ther than to removal from office, and 
disqualification to hold and enjoy any office of 
honor, trust, or profit under the United States; 
but the party convicted shall be liable to indict- 
ment, trial, judgment, and punishment, according 
to law. 

§ 146. In the case of a conviction on impeach- 
ment of the President, Vice-President, or other 
civil officer of the United States, for treason, 
bribery, or other high crime or misdemeanor, the 
judgment must be removal, and can be nothing 
less.^ Whether persons not in any civil office 
may be impeached, and whether persons in 
office may be impeached for any less ofience 
than those above named for which they must be 
removed, the Constitution does not expressly 
decide. But disqualification for office may be 
superadded in the case of officers, and made the 
whole judgment in other cases, if there may be 
any. In the case of William Blount, the Senate, 
having expelled him from their body, declined 
to try him on the impeachment. Many princi- 
ples were ably discussed by learned counsel ; but 
it is difficult to say what principle was decided 
by sustaining the plea to the jurisdiction of the 
Senate. In the case of John Pickering, they 
substantially decided that a conviction and judg- 
ment of removal might be had for less offences 

1 Article II., section 4. 



THE SEPARATE POWERS. 169 

than those above specified; or rather, that a low 
crime was a high misdemeanor in a Judge. ^ 

§ 147. When the President of the Senate, 
who is the Yice-President of the United States, 
shall be absent, or exercise the office of Presi- 
dent of the United States, the Senate shall 
choose a President 2^^(^ tempore. It has been 
decided, that each House has, by implication, the 
power to punish for contempt; though no such 
power is expressly given by the Constitution, 
except in regard to their own members, or has 
been conferred by law. It is founded on its 

1 In the case of Blount, the House refused either to direct their 
Managers to move for process to compel his personal attendance, or to 
proceed without it ; thus leaving the matter to the Senate. The Senate, 
on motion, admitted an appearance by counsel, and then permitted them 
to file their plea, without objection. Nothing can be inferred from tliis 
action, against the right of the Senate to take the respondent into custody, 
either with or without a voluntary appearance on summons. In opening 
the prosecution, Mr. James A. Bayard, Chairman of the Managers, said, 
" The Constitution has said who shall have the power to impeach, and 
who of trying impeachments. It has also limited the extent of the 
punishment. But it has not described the jiersons who shall be the ob- 
jects of impeachment, nor defined the cases to which the remedy shall 
be confined. . . . Upon these points we are designedly left to the regu- 
lations of the common law. . . . The question therefore is. What persons, 
for what offences, are liable to be impeached at common-law ? . . . The 
question of impeachability is a question of discretion only with the 
Connuons and Lords. . . . All the King's subjects are liable to be im- 
peached by tlie Commons and tried by the Lords." Judge Pickering 
was impeached, tried, convicted, and removed, in his absence and with- 
out counsel. His misfortune was, that he held an ofiice, the duties of 
which, by the providence of God, in depriving him of reason, he was 
disqualified to perform or to resign ; and tor the same reason was unable 
to defend himself, or even to appoint counsel to do it for him. His otEce 
was wanted by individuals from personal considerations, and by the Ad- 
ministration to pay partizans. Under such circumstances, impeachment 
was a ready remedy ; and, with or without offences, which were not likely 
to be wanting, encountered no obstacles adequate to insure a correct 
administration of justice. 



170 THE SEPAEATE POWERS. 

necessity for self-preservation; but the punish- 
ment extends only to imprisonment, and that 
only during the continuance of the body exer- 
cising the power.^ Neither House can adjourn 
for more than three days during the session 
of Congress, nor to any other place than that 
in which they are sitting, without the consent 
of the other House ; and each is a complete 
check upon the other in all the business of legis- 
lation. 

§ 148. The Senate, for certain specified pur- 
poses, constitute an advisory council to the 
President, and so far participate in the exercise 
of the executive power. The appointment of 
ambassadors, other public ministers, and consuls, 
judges of the Supreme Court, and all other 
ofiicers of the United States, whose appoint- 
ments are not otherwise provided for in the 
Constitution, and which are established by law, 
shall be made by and with the advice and con- 
sent of the Senate ; and the exercise of his 
" power ... to make treaties " shall be " by 
and with the advice and consent of the Senate, 
. . . provided two-thirds of the Senators present 
concur." 

§ 149. By the second Article and twelfth 
Amendment, certain duties are assigned to 
each of the two Houses separately, in relation 
to the choice of President and Vice-President. 
"When the votes of the electors for those officers 

1 6 Wheat., 204. 



THE SEPAEATE POWERS. 171 

are counted, in the presence of the two Houses 
in convention, if no person has a majority of 
the whole number of electors appointed, then 
from the persons having the highest numbers, 
not exceeding three, on the list of those voted 
for as President, the House of Representatives 
shall choose immediately, by ballot, the Presi- 
dent; the votes to be taken by States, the rej^re- 
sentation from each State having one vote, and 
a quorum for the purpose shall consist of one 
or more members from two-thirds of the States, 
a majority of all the States being necessary to a 
choice. If no person have a similar majority 
of the votes of the electors for Vice-Presi- 
dent, then,, from the two highest numbers on 
the list, the Senate shall choose the Yice-Presi- 
dent ; a quorum for the purpose being two-thirds 
of the whole number of Senators, and a majority 
of the whole number being necessary to a choice. 
On the same principle that a quorum for ordi- 
nary business was decided, this quorum must be 
two-thirds of the Senators actually qualified and 
entitled to seats at the time. In regard to the 
House of Pepresentatives, the expression is dif- 
ferent. The quorum is a representation from 
two-thirds of the States, and a majority of all 
the States is necessary for a choice. There has 
been no direct decision by the House what this 
majority and quorum is; but it may be safely 
inferred, from the concurrent order of both 
Houses in relation to the election of 1865, that 



172 THE CONGRESS. 

the returns from certain States then m rebelhon, 
and not represented in Congress, should not be 
received or counted ; that the decision would 
be, if required to be made, that no State in 
rebellion, without representation in Congress, 
and without a republican government recognized 
by Congress as in subordination or conformity 
to the Constitution, could be considered for this 
purpose as a State within the Union, and counted 
in order to ascertain how many made a majority 
or two-thirds of all the States. 

THE CONGRESS. 

§ 150. The Senate and House of Kepresenta- 
tives constitute the " Congress of the United 
States," in which are "vested" "all legislative 
powers granted" by the Constitution.^ They 
shall assemble at least once in every year, and on 
the first Monday in December, unless a different 
day shall be appointed by law.^ Every bill, 
order, resolution, or vote of Congress, requiring 
the concurrence of the two Houses (except on a 
question of adjournment), shall, before it be- 
comes a law or shall take effect, be presented 
to the President of the United States. If he 
approve, he shall sign it; but, if not, he shall 
return it, with his objections, to that House in 
which it shall have originated, who shall enter 
the objections at large on their Journal, and 

1 Section 1. 2 Section 7. 



THE CONGRESS. 173 

proceed to reconsider it. If, after such recon- 
sideration, two-thirds of that House shall agree 
to 23ass it, it shall be sent, together with the 
objections, to the other House, by which it shall 
likewise be reconsidered ; and, if approved by 
two-thirds of that House, it shall become a law, 
or valid Act of Congress, notwithstanding the 
President's objections. But, in all such cases, 
the votes of both Houses shall be determined by 
yeas and nays; and the names of the persons 
voting for and against the measure shall be 
entered on the Journal of each House respec- 
tively. If it shall not be returned by the Presi- 
dent within ten days (Sundays excepted) after 
it shall have been presented to him, the same 
shall be valid, in like manner as if he had 
signed it; imless the Congress, by their adjourn- 
ment, prevent its return, in which case it shall 
not be so. It is said, that joint resolutions of 
the two Houses for directing the mode of pro- 
ceeding in convention for counting the votes of 
the electors for President and Yice-President, 
adopting a uniform mode of organizing a new 
Congress, initiating and qualifying its members, 
regulating the mode of transacting business be- 
tween themselves and with the executive, and 
proposing alterations of the Constitution,^ do not 
require the action of the President, and need 
not be presented to him. An instance of the 
first was when the two Houses, by concurrent 

1 HoUingsworth v. Virginia, 3 Dall. Rep. 378. » 



174: THE CONGRESS. 

resoliitioTi, in February, 1864, directed that cer- 
tificates of votes given in certain States then in 
rebelhon against the government (naming them) , 
and then in the hands of the Vice-President, 
should not be opened by the Yice-President, nor 
laid before the Convention. Instances of the 
second kind are in the Joint Rules and Orders 
of the two Houses, and in the Resolution of 
March, 1866, by which the two Houses deter- 
mined that neither House should consider the cre- 
dentials of any man, presented as a member from 
a State lately declared to be in rebellion, until 
Congress shall have decided that such State is 
entitled to representation therein. The other 
Mnd was settled in the mode of adopting the 
thirteenth Amendment, and in the measures 
taken towards other amendments since. 



CHAPTEE Xn. 

LEGISLATIVE POWERS. 

§ 151. The whole business and duty for ("in 
order to " ) which the government was " or- 
dained and estabhshed," to execute the Consti- 
tution and accomphsh its avowed purposes, is 
divided and distributed among the different 
departments. The three departments have in- 
dependent duties, with commensurate powers, 
occupying the whole field of both, belonging 
to the government. The legislative portion 
devolved upon Congress is described by the 
words, " all legislative powers herein granted 
shall be vested in Congress." ^ What are these 
powers? It is obvious that the words "herein 
granted " are restrictive. " All legislative pow- 
ers " generally, or power to make all laws, or 
even all laws consistent with natural rights and 
free government, according to the principles 
of universal political law, are not necessarily in- 
cluded, although what are included must con- 
form to those principles. This grant is only a 
dividend or distributive share of the generfil 

1 Section 1. 

[175] 



176 LEGISLATIVE POWERS. 

powers and duties before assigned to the gov- 
ernment, and of course cannot extend beyond 
the whole, of which they constitute only a part. 

§ 152. "What portion of the general powers of 
the government are legislative, within the mean- 
ing of our Constitution, depends on two con- 
siderations. 1st, Are they legislative, according 
to the principles of political law ? or, 2d, Are 
they specially assigned by the Constitution to 
that department? If they are not adapted to aid 
in the execution of any of the avowed purposes 
of the people in the formation of their govern- 
ment, they are not " herein granted " at all, 
because they form no part of the general powers 
of the government. If they are so adapted, 
then they may be " herein granted " to the legis- 
lature, because they constitute a part of the 
general powers suited to effect those purposes. 
So, then, if they are legislative in their nature, 
they are " herein granted " expressly for that 
reason. If they are specially assigned to this 
department, then they are " herein granted," 
whether strictly legislative or not; because the 
Constitution, by so granting them to the legis- 
lative body, has made them legislative at least 
for this purpose. 

§ 153. In short, the legislative power, as herein 
granted, is the power defined in the 8th section, 
to make all laws for executing the Constitution, 
£fnd is co-extensive with the purposes and ob- 
jects of the people in ordaining it. Legislative 



LEGISLATIVE POWERS. 177 

power is the power to make laws. " All legis- 
tive power " is the power to make all laws or 
any laws. " All legislative powers herein grant- 
ed " are the powers of making all the laws 
adapted to the execution of the duties hereby 
imposed on the government. It cannot mean 
merely the powers specially and expressly named 
elsewhere in the Constitution, because these are 
entirely inadequate even to initiate, and much 
more so to sustain and administer, the govern- 
ment. It cannot mean the enumerated powers, 
so called, or powers particularly conferred on 
Congress by specific provisions; for that would 
make the Constitution talk nonsense, by saying 
that the powers conferred on Congress shall be 
vested in Congress. 

§ 154. The government possesses three differ- 
ent classes of powers : 1st, Those necessary to 
enable it to accomplish all the declared objects 
for which it was established, and execute the 
whole Constitution. 2d, Those specially de- 
volved on the government at large, by particular 
provisions, — as the guarantee clause in Article 
lY., and the validity of debts and engagements 
in Article YI. ; and, 3d, Those specially delegated 
to particular departments or officers. So far as 
these last are delegated to Congress, Congress 
has them, of course. So far as they are dele- 
gated to other departments or officers, or 
devolved on the government generally, and in- 
clude or require the making of laws, the power 

12 



178 LEGISLATIVE POWERS. 

to make them is here conferred on Congress, 
because they are the legislative part of those 
duties ; and the same afterwards conferred by 
the last clause of the 8th section, Article I. So 
that the " legislative powers herein granted," is 
just the power [no more, and no less] " to make 
all laws . . . necessary and proper for carrying 
into execution . . . all . . . powers vested . . . 
in the government, ... or in any department or 
of&cer thereof; " which are just the powers^ of 
administering the government and executing the 
whole Constitution. 

§ 155. The question whether a particular pow- 
er is legislative or not, can arise only in decid- 
ing by which department it shall be exercised. 
Whether it belongs to the government or not, 
depends on the question whether it is legiti- 
mately adapted to the accomplishment of any of 
its avowed objects and duties. If it is, it must 
be exercised by the proper department. If it is . 
not, it is of no consequence whether it is legis- 
lative or otherwise; for in neither case can it be 
herein granted, l^othing is " herein granted " 
to this department, or any other, but what is 
appropriate to the execution of the purposes of 
the Constitution ; and every thing that is so, 
consistent with good morals and the fundamental 
principles of civil society, unless specially pro- 
hibited, is " herein granted." In the language 
of Chief Justice Marshall, " Let the end be 
legitimate, let it be within the scope of the 



LEGISLATIVE POWERS. 179 

Constitution [its declared pnrj)oses], and all 
means which are appropriate, which are plainly 
adapted to that end, which are not prohibited, 
but consist with the letter and spirit of the Con- 
stitution, are constitutional." ^ 

§ 156. JSrothing can be made more plain, direct, 
and conclusive of this whole subject, than the 
last clause of the 8th section. Its exactness, 
comprehensiveness, and verbal accuracy, cannot 
be surpassed. By the 1st section, the legisla- 
tive power is vested in Congress; and, by the 
8th, it is logically defined to be " power to 
make all laws . . . necessary and proper [which 
has been held to mean appropriate or conve- 
nient] for carrying into execution . . . all . . . 
powers vested ... in the government, ... or 
in any department or officer thereof." This is 
broad, full, and explicit. It includes all the 
business of the legislative department, whether 
particularized in special grants to Congress, or 
dependent on the general or special duties of 
the government, or any of its departments or 
officers. Many special clauses assign particular 
duties to Congress, and many others make spe- 
cial regulations in regard to particular subjects, 
obligatory on the government ; but sjDCcifying 
no particular mode of execution, any more than 
is done in regard to the general duties which 
embrace and cover them all. The principle on 
which the legislative duties of Congress is 

1 McCuUougli 17. Maryland, 4 Wlieat. Rep. 



180 LEGISLATIVE POWEES. — GENEEAL. 

founded, is the same in both cases. It is to 
make laws for executing the Constitution, or the 
powers of the government, whether general 
or special, though the general include all the 
special. 

GENEEAL. 

§ 157. By the general powers of Congress 
is meant all those which devolve upon them, as 
the legislative or law-making department of the 
government, bound to the performance of that 
portion of all its duties, though not otherwise 
assigned to them. Legislative power is re- 
stricted by the general principles of free govern- 
ment; and the legislative power of Congress is 
limited also within the actual powers of the 
government under the Constitution.^ But they 
are co-extensive with those powers, and may be 
applied to all the purposes and objects for which 
the government was instituted. 

§ 158. They are co-extensive, because what- 
ever is required of the whole government de- 
volves directly upon the different departments. 
The government can act only through them. If 
particular objects and purposes of the govern- 
ment may be accomplished without legislation, 
the duty may devolve on one of the other 
departments ; but, if legislation is needed, it 

1 Calder v. Bull, 3 Dall. Eep. ; Eletcher v. P§ck, 6 Cranch's Eep. ; 
Terrett v. Taylor, 9 Cranch's Eep. ; Argument of Jeremiah Mason, Case 
of Dart. Coll., p. 33 ; Wilkinson v. Leland, 2 Peter's E. 657. 



LEGISLATIVE POWERS. — GENERAL. 181 

must devolve on Congress, for they only can 
make laws. Congress is directly vested with all 
the legislative powers of the government, — all 
legislative powers herein granted, — that is, 
all the legislative powers of the Constitution. 
It grants no legislative power to any body else. 
What this legislative power so vested in Con- 
gress is, is exactly defined in the 8th section, 
to be a " power to make all laws . . . necessary 
and proper for carrying into execution ... all 
. . . powers vested ... in the government." 
The Constitution vests no legislative power in 
the State governments: all the duties it enjoins 
on the States, their ofiicers, governments, or 
citizens, are only executory; and necessarily in- 
volve no legislative power any more than if they 
had all been enjoined on the Justices of the 
Courts, or the SheriflPs of the counties. The 
President, with advice, &;c., " shall have power 
to make treaties," which, like the Constitution 
itself, are a part of the law of the land ; but 
they are not an exercise of legislative power, 
any more than the Constitution itself is, but are 
expressly made executive acts; which may also, 
in some other cases, have the force of laws. 

§ 159. Congress may therefore legislate or 
make laws to perfect the Union, establish justice, 
insure domestic tranquillity, provide for the 
common defence, promote the general welfare, 
and secure the blessings of liberty; as well as 
for carrying into execution all the other and 



182 LEGISLATIVE POWEES. — GENEKAL. 

more special provisions of the Constitution, so 
far as such legislation may be required, or have 
a tendency to effect any of those objects. The 
general duties above mentioned, which include 
all the others, have already been remarked upon; 
and in regard to the others it may be observed, 
that every precept, mandate, requirement, or 
restriction, and in fact almost every sentence 
of the Constitution, may, in some way or other, 
afford occasion for legislative action. Some of 
these call for particular attention. 

§ 160. By Article I., section 2, " Eepresenta- 
tives . . . shall be apportioned among the several 
States, . . . according to their respective num- 
bers," and cannot in all exceed one for every 
thirty thousand. But the whole number must 
be ascertained before it can be divided or appor- 
tioned. This is the mandate of the Constitu- 
tion, and of course the supreme law of the land. 
The duty of executing it, as well as all the rest 
of the Constitution, rests upon the government 
created for that purpose. The powers and 
duties of the government are distributed among 
three departments. ]^o special authority is here 
given to Congress, any more than there is in the. 
other precept, " to establish justice." But the 
duty enjoined upon the government demands 
legislation, and " all the legislative powers of the 
government are vested in Congress." It follows 
necessarily, that, on this and all other subjects 
similarly situated. Congress must act, and " make 



LEGISLATIVE POWERS. — GENERAL. 183 

all laws . . . necessary and proper for carrying 
into execution [this] and all other powers 
vested by this Constitution in the government 
... or any de^oartment or officer thereof." 

§ 161. Accordingly we find that such has 
been the uniform practice of the government. 
The Constitution itself regulated the aggregate 
and the apportionment for the first Congress; 
but since that we have never -been without a 
law, duly enacted by Congress, regulating the 
subject. This duty, being legislative, would 
necessarily devolve upon Congress, if left pre- 
cisely as it stands in the 2d section, without 
further provision. But it may be considered 
as granted in the 4th section, as a part of the 
power for regulating elections, — prescribing 
the manner of them. 'No election of Repre- 
sentatives can take place, without knowing how 
many are to be voted for; and, if this cannot be 
settled under any other power in the Constitu- 
tion, it might be settled under the authority of 
this section, though it is one of the necessary 
items in the " manner of holding elections," 
which the State legislatures could not prescribe 
even provisionally. 

§ 162. Many other duties are imposed on the 
government in a similar manner; that is, without 
any designation to which department they may 
belong: and they are left to the action of the 
government, through the ap23ropriate depart- 
ment. By section 9, " A regular statement and 



184 LEGISLATIVE POWEES. — GENERAL. 

account of the receipts and expenditures of all 
public money shall be published from time to 
time." By Article II., " The President shall, 
at stated times, receive for his services a com- 
pensation, which shall neither be increased nor 
diminished during the period for which he shall 
have been elected;" and, by Article III., "The 
judges . . . shall, at stated times, receive for 
their services a compensation, which shall not be 
diminished during their continuance in office." 
The 2d section of Article II., recognizes "the 
executive departments," but makes no provision 
for their number, organization, or duties. So 
Article III. establishes the " Supreme Court," 
and vests in it the " judicial power of the United 
States," but makes no provision for its organiza- 
tion, or the mode of executing its duties. By 
Article IV., " The citizens of each State shall 
be entitled to all privileges and immunities of 
citizens in the several States ; " and Chief Jus- 
tice Taney says,^ " These privileges and immuni- 
ties, for greater safety, are placed under the 
guardianship of the general governmeni" By 
the same section, fugitives from justice and from 
labor are to be delivered up; but it is not said 
how or by whom. They are in no custody. By 
section 4, " The United States shall guarantee, 
to every State in this Union, a republican form 
of government." By Article YI., " The Sena- 
tors and Representatives before mentioned, and 

1 16 Peters' Eep. 636. 



LEGISLATIVE POWERS. — GENERAL. 185 

the members of the several State legislatures, 
and all executive and judicial officers, both of 
the United States and of the several States, shall 
be bound by oath or affirmation to support this 
Constitution." How, when, by whom; by what 
authority; in what form; how, where, and by 
whom recorded and preserved? 

§ 163. Of the same nature are all the provi- 
sions of the Constitution, prescribing certain 
duties to the States, as political bodies, their 
governments, officers, or people, as such, in their 
official or corporate capacity. " Representatives 
shall be . . . chosen ... by the people of the 
several States." Then the people must choose 
them. If this is their (jluty, they certainly have 
the power, — the elective franchise, the right of 
suifrage. "Each State shall have at least one 
Representative." This is not merely permissive. 
" When vacancies happen in the representation 
from any State, the executive authority thereof 
shall issue writs of election to ffil such vacan- 
cies." — " Senators . . . shall be . . . chosen by 
the legislature " of each State. — " Each State 
shall appoint . . . electors " of President, and 
" the electors shall meet " and perform their 
duties as the Constitution directs. " The Judges 
in every State shall be bound by the Constitu- 
tion and laws of the United States." 

§ 164. Mr. Madison truly says,^ " The powers 
of the new government will act on the States 

1 Federalist, No. 40. 



186 LEGISLATIVE POWERS. — GENEEAL. 

in their collective characters." But how act, 
except through laws regularly made to enforce 
the Constitution ? Mr. Hamilton says, " The 
States, as well as individuals, are bound by these 
laws."^ In Martin v. Hunter,^ the Court say, 
" It is a mistake, that the Constitution was not 
designed to operate upon States in their cor- 
porate capacities. It is crowded with provisions 
which restrain or annul the sovereignty of the 
States, in some of the highest branches of their 
prerogatives. . . . The language of the Con- 
stitution is imperative upon the States, as to 
the performance of many duties. It is impera- 
tive upon the State legislatures to make laws, &;c. 
. . . The legislatures of the States are, in some 
respects, under the control of Congress ; and in 
every case are, under the Constitution, bound by 
the paramount authority of the United States.'' 

§ 165. These are all parts of the supreme law 
of the land, and as such to be executed by the 
government, l^o special duty in regard to any 
of them is assigned to Congress or any other 
department. But all of them require the enact- 
ment of laws for their enforcement; and Con- 
gress has the whole legislative or law-making 
power of the government. Congress has ac- 
cordingly made laws relating to most of these 
subjects, and might very profitably make many 
more. The duty of Congress to legislate, in all 
this class of cases, was first settled by them- 

1 2 Elliot, 362. 2 1 Wheat. R., 304. 



LEGISLATIVE POWERS. — GENERAL. 187 

selves, in the first statute passed under the Con- 
stitution. It related to the oaths to be taken by 
the State officers, and has remained in force 
during the whole history of the government. It 
was objected to on its passage, for the want 
of power in Congress. But the objection was 
overruled ; and the principle has been universally 
aj^provcd and practised upon ever since. It was 
acted uj^on in the statute relating to fugitives 
from justice and from labor; and the Supreme 
Court have decided, that Congress not only had 
the power to legislate upon it, but that their 
power was exclusive.^ 

§ 166. This last statute, however, so far as 
respects fugitives from labor, though it said not 
one word about slaves, but followed the words 
of the Constitution, applying to " persons held 
to labor " under State laws, which of course must 
be constitutional laws or they are no laws, came 
practically, by the same sort of perversion that 
was successfully applied to other parts of the 
Constitution for the same purpose, and without 
any judicial examination or decision, to be ap- 
plied almost exclusively to Southern slavery, or 
jDersons held forcibly in bondage, contrary to the 
Constitution and all legal as well as moral right. 
It has consequently, with slavery itself, been 
abolished; and legislation on all these subjects, 
and all others covered by the Constitution and 
within the purposes of the finidamental law of 

1 16 Peters' Rep., 636. 



188 LEGISLATIVE POWERS.— GENERAL. 

the land, is authorized, by its fitness and adap- 
tation " for carrying into execution ... all the 
powers vested by this Constitution in the gov- 
ernment of the United States." ^ 

1 In the debate on the National Bank in the House of Representatives, 
Feb. 2, 1791, Mr. Madison, commenting on tlie words necessary and proper; 
said, " These two words had been by some taken in a very limited sense, 
and were thought only to extend to the passing of such laws as were 
indispensably necessary to the very existence of the government. . . . 
He wished the words understood so as to permit the adoption of measures 
the best calculated to attain the ends of government, and produce the 
greatest quantum of public utility. In the Constitution, the great ends of 
government were particularly enumerated ; but all the means were not, 
nor could they be, pointed out, without making the Constitution a com- 
plete code of laws. . . . The more important powers are specially 
granted ; but the choice from the known and useful means of carrying the 
power into effect, is left to the decision of the legislature. . . . No power 
could be exercised by Congress, if the letter of the Constitution was 
strictly adhered to, and no latitude of construction allowed ; and all the 
good that might be reasonably expected from an efficient government 
entirely frustrated." 

Mr. Lawrence, of New York, who followed in the debate, said, " The 
principles of the government, and ends of the Constitution, were ex- 
pressed in its preamble. It is established for the common defence and 
general welfare. The body of that instrument contained provisions the 
best adapted to the intention of those principles and attainment of those 
ends. To these ends, principles, and provisions. Congress was to have 
a constant eye ; and then, by the sweeping clause, they were vested with 
the power to carry the ends into execution." 

It has already been shown, that the distinction of preamble and body of 
the Constitution does not exist. What Mr. Madison calls the " great ends 
of government . . . particularly enumerated," and Mr. Lawrence " the 
ends of the Constitution," are those mentioned in the enacting or intro- 
ductory clause, and are to be attained, according to these gentlemen, 
through the power of Congress to make all laws necessary and proper for 
these purposes ; because all the means were not, and could not, be pointed 
out. This debate took place when Mr. Madison was a friend of Wash- 
ington, and a supporter of his Administration. The difference of tone in 
some of liis subsequent writings will be apparent. 

The power of the government to execute the Constitution, at least so 
far as respects the subject of personal liberty or slavery, is now [1865] 
effectually put at rest by the thirteenth Amendment, abolishing slavery, 
which expressly authorizes Congress to " enforce " that Article by appro- 
priate legislation. 



CHAPTEE XIII. 

LEGISLATIVE POWERS. — GENERAL. 

§ 167. The cases referred to in the last two 
sections being leading cases, both in the legisla- 
tive and jndicial departments of the government, 
are deserving of particular attention, and ought 
to be stated more at length ; especially since they 
were the original, and remain the permanent, deci- 
sions of the right and duty of Congress to make 
laws for the execution of the general provisions 
and regulations of the Constitution, — really of 
the whole instrument, as well as of those parts 
of it more expressly assigned to them by par- 
ticular and specific mandates. When it is said 
Congress may " borrow money on the credit of 
the United States," it is well understood that 
they may borrow and promise to pay, " issue bills . 
of credit," in the name of the United States, and 
that such bills or promises are legal and valid in 
the hands of any lawful owner thereof; and the 
government acts accordingly. 

§ 168. But w^hen it is said, " l^o State shall 
. . . emit bills of credit," what is understood by it, 

[189] 



190 LEGISLATIVE POWERS. — GENERAL. 

and who understands it? Does it mean that a 
State cannot promise to pay or make a bill of 
credit,^ that such a bill or promise is illegal and 
void, not transferable by delivery or otherwise, 
and gives no rights to the lawful holder? May 
a State borrow money and contract debt to any 
amount, without limitation, of anybody, citizen 
or alien, for any purpose, lawful or unlawful, 
loyal or treasonable, and then pay or repudiate 
as they please? Is this restriction expected to 
execute itself, or is each State to construe and 
execute it or not, as they please? It is certain 
the United States are bound to " protect each of 
them against invasion," in all the iniquity they 
may be allowed to commit. Has the govern- 
ment, then, no rights or duties to perform, in 
reference to this and other restrictions under 
which the Constitution has placed them? 

§ 169. "When the Constitution says, " Repre- 
sentatives . . . shall be apportioned among the 
. . . States . . . according to . . . numbers," 
has Congress any thing to -say on the subject? 
If not, who has? When it is required that "the 
Judges in every State shall be bound ... by 
^the supreme law of the land," has the govern- 
ment no responsibility in the matter? The whole 
matter amounts only to this: Is the government 
bound to execute the Constitution ; and is Con- 
gress, as the legislative department of the gov- 
ernment, bound to make all laws necessary and 
proper for carrying it, and every part of it, into 



LEGISLATIVE POWERS. — GENERAL. 191 

execution ? This question was fairly raised, 
discussed, and settled, by the respective tribu- 
nals, in these two cases; and the answer has 
been recognized ever since. 

§ 170, The first was on the passage of the 
Act of June 1, 1789, the first legislative Act of 
the government, entitled " An Act to regulate 
the time and manner of administering certain 
oaths." The Constitution ^ provides that certain 
officers of " the United States and of the several 
States shall be bound by oath or affirmation to 
support this Constitution." It prescribes no 
oath in form; no time, place, or manner of taking 
it; no authority for administering or recording 
it; no mode of proving it; and no penalty for 
avoiding or violating it. It assigns no special 
duty to the government, or any department of it. 
The bill was reported in the House by a com- 
mittee, of which Mr. Madison was a member, 
with a penal clause; which was afterwards omit- 
ted on the ground that taking the oath was a 
necessary qualification for office, the omission of 
which w^ould render void all official acts of the 
officer. IN^evertheless, the Act was objected to 
for want of adequate power in Congress. 

§ 171. Mr. Gerry said, " There is no provision 
for empowering the government of the United 
States, or any officer or department thereof, to 
pass a law obligatory on the members of the 
legislatures of the several States, or other ofli- 

1 Article VI., section 3. 



192 LEGISLATIVE POWEES. — GENERAL. 

cers thereof, to take this oath. This is made 
their duty by the Constitution, and no such law 
of Congress can add force to the obhgation; 
but on the other hand, if it is admitted that such 
a law is necessary, it tends to weaken the Con- 
stitution, which requires such aid. ]!^either is 
any law, other than to prescribe the form of the 
the oath, necessary or proper to carry this part 
of the Constitution into effect; for the oath re- 
quired by the Constitution, being a necessary 
qualification for the State officers mentioned, 
cannot be dispensed with by any authority what- 
ever, other than the people and the judicial 
power of the United States, extending to all 
cases arising in law or equity under this Consti- 
tution. The Judges of the United States, who 
are bound to support the Constitution, may, in 
all cases within their jurisdiction, annul the 
official acts of State officers, and even the acts 
of the members of the State legislatures, if such 
members and officers were disqualified to do or 
pass such acts, by neglecting or refusing to take 
this oath." 

§ 172. The objection of " no provision for em- 
powering the government," &c., was just as 
applicable to the bill in relation to United-States 
officers, as in relation to State officers ; but it 
was made only in reference to State officers, and 
on the ground of interference with State rights. 
What Mr. Gerry intended was to deny the gen- 
eral power of the government, as the agent of 



LEGISLATIVE POWERS. — GENERAL. 193 

the people, to administer and execute the Con- 
stitution, — the supreme law. It is the same 
objection afterwards made by Mr. Madison and 
Mr. Monroe in their veto messages, as elsewhere 
cited, that they could not find, in the enumerated 
powers, the specific power to pass this particular 
measure. Mr. Madison reported and sustained 
this bill ; but he afterwards obtained more light 
respecting State sovereignty. 

§ 173. The objection was specially answered 
by Mr. Lawrence, of ]^ew York. " Only a few 
words will be necessary to convince us that Con- 
gress have this power. It is declared by the 
Constitution, that its ordinances shall be the 
supreme law of the land. If the Constitution 
is the supreme law of the land, every part of it 
must partake of this supremacy ; consequently 
every general declaration it contains is the 
supreme law. But then these general declara- 
tions cannot be carried into efiect without par- 
ticular regulations adapted to the circumstances; 
these particular regulations are to be made by 
Congress, who, by the Constitution, have power 
to make all laws necessary or proper to carry 
the declarations of the Constitution into efiect. 
The Constitution likewise declares that the mem- 
bers of the State legislatures, and all officers, 
executive and judicial, shall take an oath to sup- 
port the Constitution. This declaration is gen- 
eral; and it lies with the supreme legislature to 
detail and regulate it." 

13 



194 LEGISLATIVE PO WEES. — GENERAL. 

§ 174. This answer was substantially endorsed 
by Mr. Bland, Mr. Bowdinot, Mr. Sherman, and 
others, and was apparently satisfactory to every- 
body; for the bill was passed into a law, so far 
as appears, without division, in both Houses; 
approved by President Washington; has been 
practised upon during the whole existence of the 
government; and still remains in force. It has 
not proved to be adequate to all the purposes 
for which it was intended ; but it settled the 
objection to the power of Congress, and ought 
to have silenced all similar objections to the 
execution of every right, precept, principle, or 
requirement, in any part of the Constitution. 

§ 175. The other case arose in the Supreme 
Court of the United States, on the Act of Feb- 
ruary, 1793, which was enacted in order to carry 
into execution two provisions of the second sec- 
tion of Article IV., relating to fugitives from 
justice and from labor. These provisions rec- 
ognize rights, and prescribe duties and prohibi- 
tions to States, officers, and people ; but, like 
the above clause in Article YI. and many other 
parts of the Constitution, neither supply the 
means of maintaining and enforcing them, nor 
allude to any other authority, State or national, 
to be resorted to for the purpose. The Act, so 
far as it respects fugitives from justice, has been 
in quiet operation and unchallenged, ever since 
its date, and is still in force. 

§ 176. But the section relating to fugitives 



LEGISLATIVE POWERS. — GENERAL. 195 

from labor, though restmg on the same principle 
so far as the power of Congress is concerned, 
was impeached for the want of any such power, 
and brought under judicial examination in 
Prigg's case.^ The Supreme Court unanimously 
sustained the constitutionality of the Act, on 
the express ground of the duty of Congress to 
legislate for the execution of that j)art of the 
Constitution; and a majority of the Court held 
further, that thq power was exclusive of any 
State legislation on the subject. 

§ 177. The Court say, " It has been argued, 
that the Act of Congress is unconstitutional, 
because it does not fall within the scope of any 
of the enumerated powers of legislation confided 
to that body ; and therefore it is void. Stripped 
of its artificial structure, the argument comes to 
this, that although rights are exclusively secured 
by, or duties exclusively imposed upon, the na- 
tional government, yet, unless the power to 
enforce these rights or to execute these duties 
can be found among the express powers of legis- 
lation enumerated in the Constitution, they re- 
main without any means of giving them effect 
by any Act of Congress, and must operate solely 
'pro'prio mgore, however defective may be their 
operation, — nay, even although, in a practical 
sense, they may become a nullity for the want of 
a proper remedy to enforce them, or to provide 
against their violation. If this be the true inter- 

1 16 Peters' Rep. 



196 LEGISLATIVE POWERS. — GENERAL. 

pretation of the Constitution, it must, in a great 
measure, fail to attain many of its avowed and 
positive objects as a security of rights and a 
recognition of duties. Such a Hmited construc- 
tion of the Constitution has never yet been 
adopted as correct, either in theory or practice, 
^o one has ever supposed, that Congress could 
constitutionally, by its legislation, exercise pow- 
ers or enact laws, beyond the powers delegated 
to it by the Constitution; but it has, on various 
occasions, exercised powers which were neces- 
sary and proper as means to carry into effect 
rights ex23ressly given, or duties expressly en- 
jomed, thereby. The end being required, it has 
been deemed a just and necessary implication, 
that the means to accomplish it are given also; 
or, in other words, that the power flows as a 
necessary means to accomplish the end." 

§ 178. The Court proceed to cite several 
familiar instances of legislation where precepts 
are given, but no legislation expressly provided 
for; and then add, "These cases are put merely 
by way of illustration, to show that the rule of 
interpretation, insisted upon at the argument, is 
quite too narrow to provide for the ordinary 
exigencies of the national government, in cases 
where rights are intended to be absolutely 
secured, and duties are positively enjoined ]by 
the Constitution." ..." "We hold the Act to 
be clearly constitutional in all its leading provi- 
sions." ..." The national government, in the 



LEGISLATIVE POWERS. — GENERAL. 197 

absence of all positive provisions to the con- 
trary, is bound, through its proper departments, 
legislative, judicial, or executive, to carry into 
effect all the rights and duties imposed upon it 
by the Constitution." On some of the points 
raised and argued in the case, there was a differ- 
ence of opinion among the Judges. But in 
regard to this leading doctrine of the power and 
duty of Congress, by the necessary and appro- 
priate legislation, to carry into execution this 
clause of the Constitution as well as all the rest, 
no difference of opinion was expressed or inti- 
mated by any member of the Court. 



CHAPTER Xiy. 

LEGISLATIVE POWEKS. — GENEEAL. 

§ 179. The 2d and 4:th sections of Article 
rV., requiring more particular examination, may 
be appropriately considered here, under the head 
of the General Powers of Congress. The 2d 
section, in three consecutive sentences, disposes 
of three distinct and important subjects; giving 
the supreme law on each, without any details 
of the mode or means of execution, and without 
any reference to future legislation for supplying 
them in either case. The first is, " The citizens 
of each State shall be entitled to all privileges 
and immunities of citizens in the several States." 
The citizens of each State in the Union, whether 
natural-born or naturalized citizens, are ipso 
facto citizens of the United States. Or, rather, 
every citizen of the United States is, by virtue 
of such citizenship, a citizen also of every State 
in the Union, and entitled to all the privileges 
and immunities thereof. He is entitled to all the 
rights and privileges guarantied or recognized 
by the Constitution, independent of this clause, 

[198] 



LEGISLATIVE POWERS. — GENERAL. 199 

as well as by it; and, in addition to them, he 
is also entitled, by this clause, to all the privileges 
and immunities which may be held or exercised 
exclusively under, and by virtue of, the Consti- 
tution and laws of any State in this Union. 

§ 180. These are, at the least, a right to actual 
membership of the community, whenever they 
may choose to exei'cise it, and a right to partici- 
pate in all the benefits intended to be guarded 
and secured thereby. The value of these, or 
any other rights under State constitutions and 
laws, will surely not be questioned by State- 
rights men ; and, if they exist, they appertain, 
by this provision of the Constitution, and are of 
equal value to one citizen of the United States 
as to another, who will put himself in a position 
to need and to use them on the same terms. 
Whatever they are, they are expressly granted 
by this clause to the citizens of every other 
State ; and thus are made constitutional rights, 
protected and secured by that instrument, and 
placed, in the language of Chief Justice Taney, 
" under the guardianship of the general govern- 
ment." These " privileges and immunities," 
whether originally natural, personal, or common- 
law rights, or civil and political rights, all be- 
come, by this guaranty, legal rights secured by 
the Constitution to every citizen of the United 
States. 

§ 181. The clause itself, however, supplies no 
means for its own execution, and directly in- 



200 LEGISLATIVE POWERS. — GENEEAL. 

yokes no legislative aid from Congress. For 
more than three quarters of a century, without 
any legislation or governmental action of any 
sort, it stood a perfect dead letter in the Consti- 
tution; not only without an attempt at enforce- 
ment, but almost without enough of sympathy 
for the oppressed, to raise a complaint on ac- 
count of the want of it. During this time, some 
of the States, directly in the face of this pro- 
vision, actually, practically, and persistently de- 
nied to one half of their own citizens any rights 
whatever, natural, civil, or political, under the 
Constitution of the United States or of their 
own State, by the laws of God or man; and sold 
them in the market like cattle. 

§ 182. In one instance, an authorized agent 
of a sister State was sent into another, for the 
modest purpose of instituting legal proceedings 
in their own Courts, in order to test the consti- 
tutional validity of some of these violations of 
right; but was debarred from executing his mis- 
sion, and forcibly expelled from the State, con- 
trary to law and without remedy. 

§ 183. But, on the 9th of April, 1866, a 
statute was enacted for executing this part of the 
Constitution ; not, however, without running 
the gauntlet of an executive veto. The veto, 
however, did not deny the constitutional power 
of Congress to legislate on the subject for this 
purpose, but substantially admitted it, by prom- 
ising " cheerfully to co-operate with Congress 



LEGISLATIVE POWERS. — GENERAL. 201 

in any measure that may be necessary for the 
preservation of the civil rights of . . . all . . . 
classes of persons throughout the United States." 
The President's objections were to the details 
of the bill. As they were all overruled by more 
than a two-thirds vote of both Houses of Con- 
gress, it is unnecessary to discuss them. 

§ 184. The statute begins by declaring the 
citizenshiiD of " all persons born in the United 
States." The truth of this declaration will 
hardly be called in question at this late day. It 
was true before the peoj^le became a se23arate 
nation. It was true by the common law after- 
wards, and before the Constitution was adopted. 
It was made so true by the terms of the Con- 
stitution itself, that it was found necessary, in 
order to diminish the effect of the princi^Dle, to 
insert an express disfranchisement of a portion 
of the native Indians. So it was true, indepen- 
dent of the statute ; and, if it had not been, it is 
made absolutely true by the statute. The fact 
loses none of its importance by having been a 
pre-existing fact. The statute is a distinct rec- 
ognition and re-enactment of it, by the supreme 
law-making power of the government, and car- 
ries along with it all the rights and duties which 
the fact includeg. 

§ 185. If a man is a citizen, he has all the at- 
tributes of a citizen, entitled to all the rights, 
and liable to all the duties, of citizenship; and 
the whole is covered by the same law that asserts 



202 LEGISLATIVE POWERS. — GENERAL. 

the fact. A statute may enlarge his rights, or 
add to his duties. It may perhaps diminish 
or remit a portion of his constitutional duties; 
but it cannot abate or abrogate any portion of 
his constitutional rights. This statute does not 
attempt to do either ; but it specifies certain 
rights particularly, which, whether they are 
broader or narrower than those recognized in 
the Constitution as appertaining to all citizens, 
cannot at any rate disjparage any that may be 
omitted. The statute expressly specifies, that 
he " shall have the . . . right, in every State 
and territory, ... to the full and equal benefit 
of all laws and proceedings for the security of 
person and property ; " and, by declaring him to 
be a citizen, it necessarily entitles him "to all 
privileges and immunities of citizens in the seve- 
ral States," whether they are guarantied by the 
States themselves or by the United States, and 
whether they are pre-existing rights independent 
of the statute, or rights now for the first time 
conferred by the statute. 

§ 186. The 2d section of the statute pre- 
scribes the remedy, and is equally broad with the 
first. It extends "to the deprivation of any 
right secured or protected by this Act." ]^ow, 
whether all the constitutional rights of citizen- 
ship are granted by this Act or not, there is no 
room to doubt that they are all intended to be 
secured and protected by it ; and, so far as its 
provisions may be efl'ectual for the purposes in- 



LEGISLATIVE POWERS. — GENERAL. 203 

tended, they will be so. We do not mean to 
anticipate any failure in this respect; but if, in 
the progress of its administration, any practical 
difficulties should be encountered, rendering it 
inadequate to the plenary acctimplishment of its 
l^urposes, we trust the defect will be promptly 
and sjDcedily supplied by future and more effi- 
cient legislation, and by a corresponding energy 
in the execution. 

§ 187. The second subject of this 2d sec- 
tion is Fugitives from Justice. In regard to 
them, the constitutional provision is, " A person 
charged, in any State, with, treason, felony, or 
other crime, who shall flee from justice and 
be found in another State, shall, on demand of 
the executive authority of the State from which 
he fled, be delivered up, to be removed to the 
State having jurisdiction of the crime." This 
clause, like the one preceding and succeeding it, 
as well as many others, is destitute of any special 
provision authorizing Congress to enact laws 
for its execution; and its execution was at first 
attempted without any legislation whatever. In 
1791, a free man was seized in Pennsylvania, 
where he belonged, carried into Virginia, and 
sold there as a slave. The ofiender was in- 
dicted in Pennsylvania, and, by the authority 
of 'the Governor, demanded for trial and punish- 
ment from the Governor of Yirginia, where he 
was found, and the delivery refused. The Gov- 
ernor of Yirginia, by the advice of his Attorney- 



204 LEGISLATIVE POWERS. — GENERAL. 

General, held that the clause gave him no 
authority to seize and transport a man from 
Virginia to Pennsylvania for such a purpose, and 
he had none otherwise. 

§ 188. The Governor of Pennsylvania sent all 
the papers to the President, who laid them be- 
fore Congress, and they thereuj^on passed the 
Act of Feb. 12, 1793. It is thereby enacted, 
that " it shall be the duty of the executive 
authority of the State or Territory to which such 
person shall have fled, to cause him or her to be 
arrested and secured, and notice of the arrest to 
be given to the executive authority making such 
demand, or to the agent of such authority ap- 
pointed to receive the fugitive, and to cause the 
fugitive to be delivered to such agent;" with 
other appropriate provisions for his transporta- 
tion to the place from whence he fled, and for 
the punishment of any forcible interference 
therewith. These provisions have been in actual 
practical use in every State in the Union, from 
the time of their enactment till the present, and 
are still in full force. So far as is known, the 
power of Congress to make them has never been 
doubted or questioned by anybody. 

§ 189. The phrase, " a person charged," is 
understood by the statute technically ; and a duly 
authenticated copy of the indictment, or affida- 
vit before a magistrate, by which the charge is 
made, is to be produced as the foundation of the 
demand; and then the statute addresses itself to 



LEGISLATIVE POWERS. — GENERAL. 205 

the executive authority of the State as a part 
of the machiner}^ of the government, and deals 
with it, as the Constitution does with the States 
themselves, their governments, and people, as 
subjects bound to obey, and, if need be, to assist 
in the administration of the supreme law of the 
land. The existence and continuance of this 
statute, on a subject in constant use, and with 
imiversal acquiescence, in addition to many 
others elsewhere cited of a similar character, 
affords the strongest possible evidence of the 
general understanding, that the power and duty 
of Congress authorize and require them to legis- 
late for the enforcement and execution of every 
part of the Constitution, and particularly of 
every precept, right, principle, or prohibition it 
contains. There never has been any question in 
regard to their duty to legislate for the execu- 
tion of this provision of the Constitution, nor in 
regard to the validity and constitutionality of 
the provisions of this particular statute for that 
purpose. 



CHAPTEE XY. 

LEGISLATIVE POWEES. — GENERAL. 

§ 190. The third and last subject of this sec- 
ond section is Fugitives from Labor. The pro- 
vision is of the same character with the two 
preceding ones, in respect of means of execution 
and invocation of special legislative power. It 
is in these words : " 'No person held to service 
or labor in one State, under the laws thereof, 
escaping to another, shall, in consequence of any 
law or regulation therein, be discharged from 
such service or labor, but shall be delivered up, 
on claim of the party to whom such service or 
labor may be due." 

§ 191. The Convention had been engaged, 
from May to August, in discussing and amend- 
ing the Virginia Plan. They had successfully 
encountered and settled the vexed questions, be- 
tween a government proper of the people, and 
a confederation or league of States; the relative 
power or position of the individual States in the 
new government; and the rule of apportionment 
of representation and direct taxation, by num- 

[206] 



LEGISLATIVE POWERS. — GENERAL. . 207 

bers, without regard to race, color, or descent. 
But the Yh-ginia Plan introduced no subject that 
necessarily involved the consideration of slavery; 
so that, thus far, slavery, whether by law or 
against law, was unknown to the Constitution. 
The original fifteen Resolutions, introduced by 
Mr. Randolph, had expanded, under the hands 
of the Convention, to twenty-three distinct prop- 
ositions, which, at the end of that time, went 
into the hands of the Committee of Detail, to 
" report a Constitution conformable thereto." 

§ 192. The South-Carolina Plan also, without 
any examination or sanction of the Convention, 
and without instructions, went into the hands of 
the same committee, of which Mr. Putledge, 
of South Carolina, was chairman. The South- 
Carolina Plan contained provisions limiting the 
commercial jDOwer, prohibiting the taxation of 
persons or exports, and requiring the rendition 
of fugitives, — all subjects looking directly to 
the condition of slavery, the proceeds of slave 
labor, and the continuance of the slave-trade, 
^one of these subjects had been discussed in 
the Convention ; but, the day before the com- 
mittee were appointed. General Pinckney fore- 
warned the Convention, that, if the committee 
should fail to provide security against the eman- 
cipation of slaves and the taxation of exports, 
he should oppose their report. 

§ 193. The Convention had the benefit of this 
hint in the selection of their committee, and the 



208 LEGISLATIVE POWEKS. — GENEEAL. 

committee had it also in the prosecution of their 
labors. Their draft of a Constitution followed 
the form of the South-Carolina Plan entirely, 
and, in most respects, the substance also; inter- 
weaving or modifying it by the principles already 
sanctioned by the Convention, and others taken 
either from the Articles of Confederation or 
other plans before them, or originated by them- 
selves. This draft became the basis of all the 
subsequent proceedings of the Convention. The 
subjects above mentioned, bearing on the inter- 
ests of slavery, were dealt with by the Com- 
mittee of Detail as follows : — 

§ 194. In the South- Carolina Plan, " ISTo tax 
shall be laid on articles exported ft'om the 
States; nor capitation tax, but in proportion to 
the census before directed." — " All laws regu- 
lating commerce shall require the assent of two- 
thirds of the members present in each House." 
— " Any person charged with crimes in any 
State, fleeing from justice to another, shall, on 
demand of the executive of the State from which 
he fled, be delivered up, and removed to the State 
having jurisdiction of the offence." 

§ 195. In the Report of the Committee of De- 
tail, " ]^o tax or duty shall be laid by the legis- 
lature on articles exported from any State, nor 
on the migration or importation of such per- 
sons as the several States shall think proper to 
admit; nor shall such migration or importation 
be prohibited." — " ISTo capitation tax shall be 



LEGISLATIVE POWERS. — GENERAL. 209 

laid, unless in proportion to the census herein- 
before dii'ected to be taken." — " N^o navigation 
Act shall be passed without the assent of two- 
thirds of the members present in each House." 
— " Any person charged with treason, felony, 
or high misdemeanor, in any State, who shall 
flee from justice, and shall be found in any other 
State, shall, on demand of the executive power 
of the State from which he fled, be delivered up, 
and removed to the State having jurisdiction of 
the ofl'ence." 

§ 196. In regard to the items of taxation on 
persons and exports, the Committee adopted the 
views of South Carolina, which now form a part 
of the Constitution.^ As to commercial regula- 
tions, the Committee modified the South-Carolina 
claim to a positive prohibition of laws restraining 
" the migration or importation of persons," by 
taxation or otherwise ; and requiring a two-thirds 
vote for navigation laws. The difficulty on this 
subject was afterwards adjusted in the Conven- 
tion, by striking out the restriction on navigation 
laws, and limiting the prohibition in regard to 
the impoi'tation of persons to twenty years, with 
a ten-dollar tax, as in Article I., section 9. 

§ 197. The South-Carolina claim, in regard 
to rendition or extradition of persons " charged 
with crimes in any State," so far as it related to 
the interests of slavery, resulted in the last clause 
of Article IV., section 2, now under considera- 

1 Article I., section 9, cl. 4 and 5. 
U 



210 LEGISLATIVE POWERS. — GENERAL. 

tion. The terms of the provision in their Plan 
were studiously broad, so as to include any thing 
that any State might choose to call a crime; not 
limited to offences mala per se, but extending to 
mala jrroliihita also ; so that, by virtue of it, they 
could as well reclaim a runaway slave as an ab- 
sconding murderer. 

§ 198. The Committee of Detail, for reasons 
which are altogether inexplicable, considering 
the manner in which they treated the rest of the 
above series, changed the phraseology of the 
clause from " charged with crimes " to " charged 
with treason, felony, or high misdemeanor ; " 
thus limiting its operation to offences mala per 
se at least, and leaving out all mala jproliibita, or 
mere nominal and artificial crimes. It was at 
first attempted to evade the effect of this change, 
by striking out the words " high misdemeanor," 
and inserting the words " other crime," on the 
ground that the former words had " a technical 
meaning too limited ... to comprehend all pro- 
per cases." But it was soon perceived that this 
could not answer the purpose. " Treason, fel- 
ony, or other Crime " might embrace other crimes 
of a nature similar to those named, but could not, 
on the principles of law, be extended to minor 
offences, of a totally different character and 
grade. 

§ 199. Whereuj)on South Carolina moved di- 
rectly to require " fugitive slaves and servants 
to be delivered up like criminals." This was 



LEGISLATIVE POWERS. — GENERAL. 211 

resisted, on the ground that it must then be done 
at the pubhc expense, and there was no more 
reason for the pubHc being called upon to seize 
and surrender a runaway slave or servant, than 
a runaway horse. It would also have been a 
direct recognition and legalization of slavery or 
property in man, by putting it into the Consti- 
tution eo nomine. The proposition was then 
withdrawn, in order to prepare a particular pro- 
vision, independent of the clause regarding fugi- 
tives from justice. 

§ 200. This was presented and adopted the 
next day, Aug. 29, in the following form: "If 
any person hound to service or labor in any of 
the United States shall escape into another State, 
he or she shall not be discharged from such ser- 
vice or labor in consequence of any regulations 
subsisting in the State to which they escape, 
but shall be delivered up to the person justly 
claiming their service or labor." The words 
" bound to service or labor," by which they in- 
tended to include slaves, inter alios, were used 
with reference to the ordinance of July 13, 1787, 
which was passed by Congress near seven weeks 
before, the words of which, describing a subject 
for reclamation, were " any person . . . from 
whom labor or service is lawfully claimed." It 
has been argued, that this similarity of action by 
Congress and the Convention, so nearly simul- 
taneous and unanimous in both, carries, evidence 
of consent and compromise among the different 



212 LEGISLATIVE PO WEE S. — GENERAL. 

parties in both bodies. But, if that was the case, 
why the attempt first made to smuggle through 
the extradition of a runaway slave, under the 
name of a "person charged with crimes;" and, 
failing this, then the bold and defiant proposi- 
tion to write slavery bodily, on the face of the 
Constitution? 

§ 201. Or rather, why not take the provision 
itself, supposed to have been agreed upon, and 
transfer it to the Constitution, in the very terms 
of the ordinance? But, after the failure of the 
first two attempts, and an adjournment for prepa- 
ration, an entirely new proposition is introduced, 
as above. It avoided the objection, that the 
reclamation must be made by the executive 
authority of the State from which the escape 
was made, and at the public expense; and did 
not sanction slavery, by a recognition of it as a 
legal or constitutional hond to service or labor. 
It still left the legality of the hond, the fact of 
the escape, and the justice of the claim, — that 
is, the title of the claimant, — as traversable 
facts, to be inquired into and decided, wherever 
it should be attempted to enforce the claim. 

§ 202. In this condition, ten days afterwards, 
it went into the hands of the Committee of 
Kevision, who reported it in a new draft, Sept. 
12, as follows : " I^o person legally held to ser- 
vice or labor in one State, escaping into another, 
shall, in consequence of regulations subsisting 
therein, be discharged from such service or labor. 



LEGISLATIVE POWERS. — GENERAL. 213 

but shall be delivered up, on claim of the party 
to whom such service or labor may be due." 
This still left the three main facts above men- 
tioned most palpably open to inquiry: 1. The 
constitutional legality of the original holding to 
service, whether by hond, ajoprenticeship, mar- 
riage, slavery, or otherwise; 2d, The escape, or 
wilful and unjustifiable abrasion of legal duty; 
and, 3d, The valid title of the present claimant. 

§ 203. All these inconvenient and disagreeable 
inquiries it was the distinct purpose of the slave- 
holders to forestall. Accordingly, the clause was 
subjected to further alterations in the Conven- 
tion, from which it came out, not till the day 
of the final engrossment of the Constitution, in 
the shape in which it now stands. It had before 
become known and acquiesced in, as the settled 
determination of the Convention, not to legalize 
or recognize slavery, or the right of property 
in man, in any form. Only two days before this 
final disposal of the subject, the word service 
had been substituted for servitude in the 2d sec- 
tion, on this account. And this by a unanimous 
vote. 

§ 204. The phrase held to service, or hound to 
service, being identical and used indiscriminately, 
is elsewhere in the Constitution expressly ap- 
plied to freemen,^ and, of course, could not mean 
slaves, in distinction from freemen. In every 

1 " Free persons, including those bound to service for a term of 
years." — Article I., section 2, cl. 3. 



214 LEGISLATIVE POWERS. — GENERAL. 

instance where words or phrases used in the 
'Oonstitntion are claimed to mean slaves, they 
certainly include, and were intended to apply to, 
those who were not slaves; and so are not iden- 
tical, equivalent, appropriate, or adequate to 
designate that or any other particular class ex- 
clusively. They cannot show that any such 
class was in fact known even to exist ; much less 
can they be adduced to prove that such a status 
was admitted to be lawful, or constitutionally 
approved or sanctioned. 

§ 205. The first time such a phrase is used in 
the Constitution is in section 2 of Article I., 
where they are " other persons " than freemen, 
without defining freemen, whether they are citi- 
zens or aliens, natural-born or legally admitted, 
or otherwise constituted such, but expressly in- 
cluding a portion of those " hound to service; " 
so that hound to service cannot mean slaves, for a 
portion of them are free; and other persons can- 
not mean slaves, for a portion of them are hound 
to service and freemen. These other persons are, 
at the same time, a part of the " people of the 
State," to whom the representation is assigned, 
and on whose numbers it is apportioned. 

§ 206. In the next instance,^ they are called 
" such persons " as any of the States may think 
proper to admit, without regard to status, or any 
other quality; and there can be no more ground 
for claiming that they mean slaves exclusively, 

1 Article I., section 9. 



LEGISLATIVE POWERS. — GENERAL. 215 

than that they mean men, women, children, or 
adults, or any other description of persons. In 
the last instance, they are " persons held to ser- 
vice " by local law ; which of course must be law 
in conformity to, or compatible with, the Consti- 
tution, or it can be no law. So that all of them 
leave the question of a constitutional sanction of 
slavery just where they found it, without any 
afiirmative answer. " Held to service " is also 
spoken of as a debt due; which cannot apply to a 
slave, who, having no freedom or will, can con- 
tract no obligation, or owe any thing; and, hav- 
ing no rights, can discharge no debts. 

§ 207. The obvious intention of the studied 
phraseology in which the clause now appears, — 
originally made, then altered and re-altered, by 
the slaveholders themselves, — was to place the 
whole subject de liors the Constitution entirely, 
and leave it in the hands of the local authorities 
only. If held to service did not mean slave, 
they could make slave mean held to service; and 
they did. As they made the law themselves, they 
could make such service legal, under what name 
they pleased. As the escafpe was an offence 
against local law, it must be judged of and de- 
cided by local law. The State ad quern was 
prohibited from making any discharge, and the 
party pursued was to be delivered up to his j^ur- 
suers, armed with the same local law of the 
slaveholders, by anybody and everybody to whom 
he might resort for jDrotection. "We have here 



216 LEGISLATIVE POWEKS. — GENERAL. 

the foundation of the claim of which we have 
all heard so much, and so long, and so con- 
stantly, that SLAVERY, not liolding to service, is 
a subject that belongs exclusively to the juris- 
diction of the States; and that the general gov- 
ernment has no right even to consider it, or do 
any thing about it. 

§ 208. But they soon discovered that in all 
this there was manifest error. The provision 
was worth nothing to the slaveholders, and they 
found that they could turn it to no practical ac- 
count, without the use of a magistracy and legal 
authority in the free States ; and that a free-State 
magistracy would not be governed by slave laws. 
The consequence was, that they lost no time in 
making the next important discovery, which was, 
that the United States had something to do with 
it; and, inasmuch as the provision was in the 
Constitution, it was the supreme law of the land; 
and as such it was the duty of the government 
to construe and administer it. So they called 
upon Congress to legislate on the subject. The 
slaveholders could not manage the free-State 
magistrates ; but they could manage Congress, 
and they immediately passed the Act of Feb. 12, 
1793, to carry out their wishes. 

§ 209. We have seen that before this time 
Congress had substantially determined to do 
nothing for the amelioration of the condition of 
the slaves in any of the States, or even to receive 
any petition from them. They were now boldly 



LEGISLATIVE POWERS. — GENERAL. 217 

called upon by the masters to assist in the op- 
pression of that feeble race ; and they yielded a 
ready assent. They did not, however, by this 
act, undertake to say that a person involuntarily 
and forcibly held as a slave under an unconsti- 
tutional State law, was " a person [lawfully] held 
to service or labor," or from whom " service or 
labor " was legally " due," within the meaning of 
the Constitution; or even that this clause of the 
Constitution, or any other, recognized or applied 
to slavery at all. It is Avorthy of note, that this 
statute is expressly made applicable to the ISTorth- 
west Territory, wdiei*e slavery was impossible, 
having been prohibited by Congress itself, in re- 
enacting the Ordinance of 1787. 

§ 210. They first followed the words of the 
Constitution, " held to labor " (leaving out ser- 
vice), "escape," and "due," and left their legal 
meaning and constitutional application, the fact 
and ^he law of the whole case, to the slaveholder 
himself; to be decided, if he pleased, by his own 
or any other affidavit, in the same loose and 
general phrase, before a magistrate selected and 
paid by himself; and without saving even the 
poor right of appeal to the miserable victim, who 
could have no means to resist or object to any 
thing. But, lest by possibility he might still 
have the ghost of a chance to escape from a 
decision so made, any person who should obstruct 
its execution, or conceal or harbor, or probably 
feed him, — for he coidd hardly be fed without 



218 LEGISLATIVE POWERS. — GENERAL. 

being harbored somewhere, — shall forfeit five 
hundred dollars to the slave-catcher. 

§ 211. It might have remained doubtful to 
this day, whether human ingenuity could concoct 
a statute more inhuman, barbarous, and uncon- 
scionable than this, had it not been for the addi- 
tional provisions of the Act of 1850. Under 
such circumstances, it is not difiicult to see how 
the words of the Constitution, " person held to 
service," and from whom " such service may be 
due," — which had been carefully selected and 
adopted because they did not mean " slave," and 
could not be applied to one held only by force 
and without right, — had, without any judicial 
examination whatever, been made to mean just 
exactly " slave," and nothing else. 

§ 212. It was because one |)arty only was 
permitted to have any voice in the matter, and 
he was allowed to make the construction to suit 
his own interest and pleasure. He did this 
so eifectually, that, at the end of half a century, 
in 1842, when the words, for the first and onfy 
time, came under judicial cognizance, in Prigg's 
case, their true construction and real meaning, 
which was the only constitutional question worth 
considering presented by the case, was so com- 
pletely lost sight of, as not to be mooted, or even 
alluded to, by the Court or counsel, during the 
whole argument. Judge Story, in delivering 
the opinion of the Court in that case, sa^^s, " It 
is well known, that the object of this clause 



LEGISLATIVE POWERS. — GENERAL. 219 

was to secure to the citizens of the slaveholcling 
States the complete right and title of ownership 
in their slaves, as property, in every State in the 
Union ; " and he takes this as the foundation of 
his opinion in the case. Kow, if any thing is, 
or ever can be, well known, in regard to the in- 
tentions of that Convention, it is that they were 
determined to say nothing about the right of 
property in a slave, and did say nothing about 
it; and that the circuitous phraseology of this 
clause was invented by the slaveholders, because 
they could not overcome that determination, on 
purpose to evade it; which they did effectually. 

§ 213. So the clause stood on the slaveholders' 
construction only, not even endorsed by Con- 
gress, till the repeal of the Missouri Compromise, 
the Dred-Scot decision, and the invasion of 
Kansas, so turned their heads, as to induce a 
belief that the government was so weak, and its 
friends so inditferent or inefficient, that they 
could cancel and destroy the Constitution, and 
incontinently sweep the whole government by 
the board with a besom. Then they rushed 
directly into rebellion, leaving the government 
to the sole care of its friends; when all the laws 
for construing or executing this part of the Con- 
stitution, together with slavery itself, rebellion 
and all were speedily squelched together. 



CHAPTEK XYL 

LEGISLATIVE POWERS. — GENERAL. 

§ 214. The 4th section of this fourth Article is 
another instance of most important powers, which 
must be executed by Congress, and cannot be 
done without them, and yet in which there is no 
express call made upon them to do any thing. 
" The United States shall guarantee to every 
State in this Union a republican form of govern- 
ment, and shall protect each of them against 
invasion; and, on application of the legislature, 
or of the executive when the legislature cannot 
be convened, against domestic violence." The 
duty here enjoined is npon the United States, 
the whole government, like the duty to execute 
the Constitution. But that portion of it which 
requires or admits legislation necessarily de- 
volves upon Congress, as the legislative depart- 
ment, and having all its legislative power. It 
necessarily belongs to Congress also ; because, by 
special and specific provisions. Congress is made 
expressly the depository of certain powers, abso- 
lutely essential to be brought into exercise, in 
the performance of the duties here enjoined. 

[220] 



LEGISLATIVE POWERS. — GENERAL. 221 

§ 215. For instance, the power to provide for 
the common defence, and to draw out and con- 
trol all the pecuniary resources and the physical 
power of the nation. Without these, this clause 
never could be executed; and they are in the 
hands of Congress alone. "Without entering into 
any minute criticism on the word "guarantee," 
it may be safely stated, that the clause prescribes 
a republican government for all the States, pro- 
tection against hostile invasion, and, on request, 
against domestic violence. In regard to the 
first, a republican government for the States, 
the duty of the general government to furnish 
it, under any circumstances, necessarily implies 
a duty on all the States to have such a govern- 
ment. Every State must have a republican gov- 
ernment; and, if at any time a State is destitute 
of one, the general government is bound to pro- 
vide it. 

§ 216. The first requisite to the performance 
of the duty is to understand it, — to know what 
it is. The Constitution gives no definition of it, 
and refers to no standard ; and there is no stand- 
ard of adequate authority to bind the govern- 
ment on the subject. With such lights as the 
principles of moral and political law afibrd, the 
government must decide for themselves what 
the Constitution intends by a republican form of 
government. What are its fundamental requi- 
sites, its constituent ingredients, its essential 
characteristics, that distinguish it from any and 



222 LEGISLATIVE POWERS. — GENERAL. 

all other forms of government? Without some 
knowledge on these points, an intelligent opinion 
cannot be formed in regard to any government, 
whether it is republican or otherwise. At pres- 
ent, however, our government have prescribed 
no rule of decision; and the principles, if there 
are any, on which particular cases are practically 
decided, for the time being, are vibratory and 
uncertain. Still some things in regard to them 
would probably be universally admitted. 

§ 217. It is not that the sovereignty, the ulti- 
mate right and power to control in the last 
resort, resides in the people; for this is equally 
true of all governments. It is not that the gov- 
ernment was originally established or ordained 
by the voluntary agency of the people ; for a re- 
public may grow up on precedent, or be founded 
by the decree of a despot, as well as any other 
government. It is not that a portion of the 
regular administrative authority remains with 
the people, to be exercised by suifrage, the only 
w^ay in which they ever can exercise sovereignty ; 
because the same may be done in all other gov- 
ernments. Every despot in Europe has his Par- 
liament. ISTor is it that in such, cases a large 
proportion, or even the whole, of the people 
participate in the suffrage; for a despot is not 
unlikely, on occasions, to desire, and even de- 
mand, universal suffrage. Neither the frequency 
with which the suffrage may be exercised, the 
importance of the particular subjects on which 



LEGISLATIVE POWERS. — GENERAL. 223 

it is called for, nor the proportion of the whole 
people who may participate in it, nor even the 
weight of consideration which may be allowed to 
it, will determine the character of the govern- 
ment. ]^apoleon might call for the suffrages of 
all France, every month in the year, in regard to 
every important measure by which he controls 
Europe, and conform to the result, and 3^et keep 
his government as far removed from republican- 
ism as it is at present. 

§ 218. A monarch may respect public opinion, 
and govern for the public good. So may the 
nobles, or the few. But the principle of a mon- 
ocracy is mon droit. That of an aristocracy or 
oligarchy is the same, only in a diluted form. 
The principle of republicanism is the equal right 
of the people, the citizens, all the members of 
the body politic. In theory it is the govern- 
ment of public opinion; the public being its own 
members and subjects, and the opinion being 
their own intelligent and well-considered judg- 
ment in regard to the requirements of their own 
best good and permanent interest. The excel- 
lence of a particular government consists in its 
adequacy to obtain the formation and expression 
of such an opinion. The essence of its repub- 
licanism consists in the fitness of its means for 
understanding and administering that oj^inion, 
and the practical efiiciency with which it holds 
its agents to their responsibility for doing so. 

§ 219. It is obvious that no reliance can be 



224 LEGISLATIVE POWEES. — GENEEAL. 

placed by any government on the permanent 
support of such a public opinion as republican- 
ism demands, otherwise than by a strict adhe- 
rence to the laws of God and eternal justice, the 
equal and inalienable rights of man. Hence 
republicanism is founded on those principles; 
and fidelity to them is essential to the security 
of its own existence. Election and representa- 
tion are the means by which the people primarily 
initiate and direct measures; and the vicarious 
character, and consequent responsibleness, of the 
government are the means through which the 
people obtain the anticipation and enforcement 
of their future claims. The fundamental prin- 
ciples of right and justice for the government, 
the representative character of the governors, 
and their practical responsibleness to the gov- 
erned, are the essentials of republicanism: the 
details may be variously arranged. 

§ 220. The best model of such a republican 
government is the Constitution of the United 
States.^ But if it was not in all respects abso- 
lutely the best, still it would be the most author- 
itative one for all the subordinate governments 
of the country; because it is the form actually 
adopted by all the people for their own supreme 

1 " The Constitution is strictly republican ; for all its powers are de- 
rived, directly or indirectly, from the people, and are administered by 
functionaries holding their offices during pleasure, or for a limited period, 
or during good behavior." — 1 Story's Com., 269; Federalist, No. 39. 

" The foundation of . . . liberty, and of all free government, is a right 
in the people to participate in their legislative council." — Declaration of 
Rights, 1st Congress, Oct. 14, 1774. 



LEGISLATIVE POWERS. — GENERAL. 225 

government. The Constitution of the United 
States presupposes the existence of a well-in- 
formed public opinion, for it is predicated upon 
it, and ordained by it: "We, the people, estab- 
lish" it. The j^eople forcibly cast off their old 
government, asserted their independent rights, 
and established a new one. 

§ 221. But if it had been given by the king's 
charter, and the independence voluntarily grant- 
ed, it would have been none the less republican. 
Its character depends upon its fundamental prin- 
ciples, and the manner in which they are prac- 
tically sustained and administered, rather than 
on the manner in which it was formed. The 
mode in which our Constitation endeavors to 
forestall a conformity to public opinion, in all 
the acts and actors of the government, is by 
laying the foundation of them all directly in 
popular election. " The House of Representa- 
tives shall be composed of members . . . chosen 
by the people." This is the first and principal 
branch of the supreme legislature; and no step 
can l^e taken in creating or sustaining any other 
or further act or agency in the government, with- 
out their acquiescence and assistance. 

§ 222. Thus the whole superstructure is built 
on the s uftrages o f the people. The people are 
the citizens, the members of the body j^olitic, 
and all the members. 'Not that every member 
must necessarily vote, or even have personally, 
under all circumstances, a right to vote. Public 

15 



226 LEGISLATIVE POWERS. — GENERAL. 

opinion can be collected at a cheaper rate. The 
Constitution implies that the electors may be a 
different body, though it must be composed en- 
tirely from the mass of citizens, and no others. 
Still they must be competent to think, speak, 
and act for the whole, and in the name of the 
whole, — not merely by the arbitrary appoint- 
ment of civil society, but by the permanent laws 
of nature, and the unchangeable edicts of the 
divine constitution. These may be known and 
read of all men. The public law of all lands 
arrogates to the adult males the competency to 
represent the physical, intellectual, and financial 
power of the nation ; and, in the absence of all 
experimental proof to the contrary, it may be 
safely presumed, that neither the addition nor 
substitution of women or children or both would 
beneficially or even materiall}^ afi'ect the result. 
But the list may not be rightfully diminished but 
for cause, — and such a cause as might justly 
show an unfitness for the duty, and so operate a 
deprivation of the right, as well in respect to 
this as any other right involving a correspond- 
ing duty. Public opinion, thus constitutionally 
manifested, forms the corner-stone and the super- 
structure of our government. 

§ 223. It is not presumed that Representatives 
so chosen will sanction measures leading to the 
appointment of other agencies that will disre- 
gard the rule by which all must be ultimately 
controlled. But if this should fail, and the 'gov- 



LEGISLATIVE POWERS. — GENERAL. 227 

ernment should stray beyond the Ime which 
pubHc opinion will sanction, the periodical recur- 
rence of the election will call them back, and 
enforce what is considered, in most cases, an 
adequate responsibility, by passing judgment on 
their acts. The theory is, that public opinion 
substantially directs the course of the machine, 
by choosing the oiiginal officers, and then peri- 
odically holds them to account for their acts, by 
passing judgment on the results of their opera- 
tions. 

§ 224. For this purpose, it is not necessary 
that the same officers should be candidates for 
re-election. It is sufficient to enable the people 
to approve or to condemn a particular measure, 
or the general course of measures, that the suc- 
cession is to be provided for from the associates 
and supporters of the incumbent, or elsewhere. 
In this manner, adequate provision is supposed 
to be made for the constant supervision and 
efficient responsibility of the government, and 
for the expression and enforcement of a delib- 
erate and intelligent public opinion. The prin- 
ciples of this model are substantially enjoined 
on the States, by reqidring of them a republican 
form of government, and especially by laying 
the foundation of their governments in the same 
popular election. 

§ 225. The qualifications of the electors of 
Representatives to Congress and of the most 
numerous branch of the State legislatures must 



228 LEGISLATIVE POWERS. — GENERAL. 

be the same; and as those of electors for mem- 
bers of Congress are absolutely fixed by the 
Constitution, so far as respects citizenship, they 
are fixed also in this respect for the States. 
The States, then, must have legislatures in two 
branches; and the members of the most nume- 
rous branch, like the m.embers of the House of 
Representatives of the United States, must be 
chosen by the people. If they must be chosen 
by the people, then the people, the citizens, and 
they only, have a right to choose them. All 
rights, even life and liberty, may be forfeited; but 
the forfeiture must be demanded and taken by 
due process of law, and not by arbitrary edict. 

§ 226. Many other particular provisions are 
emphatically, though indirectly, required by the 
Constitution, for the State governments, b}^ be- 
ing made absolutely necessary to enable them to 
perform their appropriate and required duties as 
States in the Union, and portions of the United 
States. The States must not only have govern- 
ments, and republican governments, and consti- 
tutions,^ which must necessarily be written con- 
stitutions; but their governments must, like that 
of the United States, be divided into three de- 
partments, legislative, executive, and judicial ; for 
the Constitution assigns appropriate duties to 
each of these departments, requiring their exist- 
ence and separate organization. The legislative 
department must also have a plurality of branches ; 

1 Article VI. 



LEGISLATIVE POWERS. — GENERAL. 229 

for the Constitution describes one as the most 
numerous branch,^ obviously in allusion to its 
own division into the two Houses of Repre- 
sentatives and Senators. 

§ 227. It would seem that the executive must 
l3e single ; ^ for otherwise there might be, in case 
of domestic violence, the same difficulty in con- 
vening them, as the Constitution intends to pro- 
vide against in regard to the legislature. The 
Constitution provides that the State Judges shall 
be bound by the Constitution and laws of the 
United States, and for the faith and credit of 
their judicial proceedings. There can be no hesi- 
tancy in admitting, that a government, founded 
and faithfully administered on these principles 
and by such agencies, is a republican govern- 
ment within the meaning of our Constitution. 

§ 228. The duty to protect each State against 
invasion is an instance of the many pleonasms 
and reduplications of the Constitution. Every 
State, Territory, and District, being a part of the 
United States, has its safety abundantly provided 
for by the more general and important duty 
elsewhere enjoined, " to provide for the common 
defence." The remaining duty of this section, 
to protect each State against domestic violence, 
is apparently postponed for an application from 
the State itself for assistance. But it may well 
be doubted if any dereliction of duty on the 
part of the officers of the State, whether legis- 

1 Article I. 2 Article IV. 



230 LEGISLATIVE POWEKS. — GENERAL. 

lative or executive, would afford an adequate 
excuse for the general government, in suffering 
the regular administration of the authorized re- 
publican government of a State to be overthrown 
and destroyed, or otherwise substantially inter- 
fered with, by domestic violence, under circum- 
stances that obviously required their authoritative 
interposition for the preservation of the peace 
and good order of the community. 

§ 229. The sixth Article of the Constitution 
contains three divisions or sections, neither of 
which expressly requires or authorizes any action 
of Congress, and yet neither of them ever has 
been or can be executed and enforced without 
legislation, which Congress, and Congress only, 
can furnish; and which they have furnished, to 
such an extent as to show that any deficiency in 
this respect arises from some other cause than 
a want of power under the Constitution. The 
first is, " All debts contracted, and engagements 
entered into, before the adoption of this Con- 
stitution, shall be as valid against the United 
States under this Constitution, as under the 
Confederation." The prominent idea of this 
section is the succession of the new government 
to all the duties and obligations of the prior 
governments of the nation. The right of suc- 
cession to all their rights of property had al- 
ready been provided for in the 3d section of 
Article TV. The result would have been the 
same, however, if both had been omitted. 



LEGISLATIVE POWERS. — GENERAL. 231 

§ 230. By international and universal law, a 
change of dynasty Avorks no alteration in the 
rights or duties of a State. Its laws and insti- 
tutions also remain the same, except in so far as 
they may be directly affected by the change in 
question. The clause was intended to provide 
especially for the dehts of the Revolutionary and 
Confedei'ation governments. These have been, 
long since, fnlly paid and discharged; and it has 
so far become functus officio. In regard to en- 
gagements, it undoubtedly included all existing 
treaties with foreign nations, and is supposed to 
have particularly intended the obligations as- 
sumed by the ordinance of 1787. These were 
substantially re-enacted by the Act of 1789. 

§ 231. ~^o such re-enactment w^as necessary, 
if the ordinance was originally valid. But a 
doubt on this subject occasioned these proceed- 
ings by way of confirmation. Otherwise the 
ordinance w as as much a part of the law of the 
land, after the adoption of the Constitution, as 
it was before. Few general laws had ever been 
passed by either of the prior governments, ex- 
cept what subserved the immediate purposes of 
the War of the Revolution, and had ceased with 
it. But one prominent Act of the Revolu- 
tionary Congress, the Declaration of Indepen- 
dence, remained in force, and was handed over 
for administration to the Confederation. 

§ 232. It never has been repealed or become 
obsolete, and is to this day, as on the fourth of 



232 LEGISLATIVE POWERS. — GENERAL, 

July, 1776, a part of the law of the land, with 
the princijiles on which it was founded, and by 
which it was sustained. "No dynasty has ever 
revoked or annulled it, or any f)art of it. The 
Constitution of the United States is so far from 
having repudiated or weakened it, or any of its 
principles, that it is built upon it as upon a 
corner-stone, and has made its principles the 
absolute foundation of the whole fabric of our 
government. The clause in both its parts has 
been carried into execution by appropriate legis- 
lation. 

§ 233. The 2d section of this Article is, " This 
Constitution, and the laws of the United States, 
which shall be made in pursuance thereof, and 
all treaties made, or which shall be made, under 
the authority of the United States, shall be the 
supreme law of the land; and the judges in 
every State shall be bound thereby; any thing 
in the constitution or laws of any State to the 
contrary notwithstanding." The object and ef- 
fect of this explicit declaration of the entire 
supremacy of the government of the United 
States over the whole nation, is so paljDable and 
intelligible, as to supersede any attempt at ex- 
position, or any endeavor to make it more plain 
or more certain, by any choice or arrangement 
of words that could be applied to it. Every 
part of it, however, requires almost constant 
legislation, though no interference of Congress 
is expressly authorized by any part of it. 'Nei- 



LEGISLATIVE POWERS. — GENERAL. 233 

ther the Constitution, laws, nor treaties, would 
have been of any avail originally, without Con- 
gress; and even now the wheels of government 
would speedily stop, without the frequent renewal 
of legislative appliances. 

§ 234. Over and above everybody else, who 
are undoubtedly bound by the laws, State Judges 
in particular are said to be specially bound 
thereby; because they are not only to obey, but 
it is their official business to administer and 
execute, the laws of the land. Congress have 
never undertaken to carry this provision into 
execution, otherwise than by providing for a re- 
vision of their proceedings in certain cases; but 
he w^ould be a bold legislator who should assert 
that this was the end of all the power of Con- 
gress for carrying into execution this provision 
of the Constitution. So the last clause of the 
section authorizes all Judges and all peo2)le to 
treat as nugatory and void any State constitu- 
tutions or laws contrary to any part of the 
supreme law of the land. But it is not thence 
to be inferred, that no further laws for carrying 
it into execution would be necessary and pro- 
per, if the opinion of Congress should lead them 
to a different result. 

§ 235. The 3d and last section of this Article 
YI., requiring all officers, State and national, to 
be bound by oath to support the Constitution, 
has been already sufficiently remarked upon. 
Legislation, though not authorized on its face, 



234 LEGISLATIVE POWERS. — GENEEAL. 

was first used on this section, and has remained 
in full force ever since. 

§ 236. " The ratification of the conventions^ 
of nine States shall be sufiicient for the estab- 
lishment of this Constitution, between the States 
so ratifying the same." The Constitution w^as 
ratified by all the States ; but without legislation 
it was a mere dead letter, and would so have 
remained to this day. Yet the Article on its 
face neither authorizes nor requires any. All 
the powers of legislation necessary to vivify 
and carry into execution the Constitution, and 
all the powers of the government, as well as 
the particular provisions of the preceding sec- 
tions, already commented on, must be found, 
and were found, in other parts of the Constitu- 
tion. If they had not been, the Constitution 
never could have gone into operation at all, 
much less could it have been successfully ad- 
ministered and jDractised upon, as it has been, 
for more than three quarters of a century. 

1 Article VII. 



CHAPTEK XYII. 

LEGISLATIVE POWERS. — SPECIAL. 

§ 237. In further explanation of the extent of 
the legislative power of the g'overnment, though 
not in addition to it, the Constitution mentions 
many subjects particularly, to which the atten- 
tion of Congress is specially called, and in re- 
gard to which their action is directly invoked. 
It also contains some qualifications and restric- 
tions of that power. These will next be noticed 
in their order; and such of them as may be 
thought to invite particular attention, will re- 
ceive it. The first of these special powers 
relates to the census.^ "The enumeration [of the 
people] shall be made within three years after 
the first meeting of the Congress of the United 
States, and within every subsequent term of 
ten years, in such manner as they shall by law 
direct." 

§ 238. This power is legislative ; for it is to be 
executed "by law," that is, by making a law. 
It also relates to several of the avowed purposes 

1 Article I., section 2. 

[235] 



r 



236 LEGISLATIVE POWERS. — SPECIAL. 

of the people in the establishment of the Con- 
stitution. It has a direct bearing upon the " per- 
fection of the Union," by its influence on the 
equalization of the representation of the people. 
" Justice " and " tranquillity " are affected, in the 
same way. The " common defence " and " gene- 
ral welfare" may be promoted by ascertaining 
the strength and distribution of the physical 
force of the nation. In executing this provision, 
Congress have wisely included in the census 
much useful information, besides the mere enu- 
meration of the people. But, in the simple 
enumeration, several matters of more or less im- 
portance, not specifically provided for in the 
Constitution, might well be settled by law. 

§ 239. The apportionment of Representatives 
and direct taxes is to be predicated upon it. It 
is therefore important to know on what princi- 
ples it is made. By the Constitution, it must 
include all persons; for "the whole number of 
free persons, . . . and ... all other persons," 
are all persons. Yet not absolutely; for "Indians 
not taxed " are expressly excluded. Who are 
they? All the descendants of the Indian na- 
tives, who adopt our civilization, live in the 
midst of our people, and subject to the duties of 
our laws? Those who live in the same manner, 
but having nothing to be taxed for, and nothing 
to pay taxes with, are not taxed? Or those who, 
living in their own tribes, separate from our peo- 
ple, governed by their own usages and customs, 



LEGISLATIVE POWERS. — SPECIAL. 237 

and not participating in our civilization, or in 
our jurisprudence? Again, from what are they 
exchided ? From the enumeration altogether, 
or only from the first class, who are counted as 
units ? 

§ 240. But there may be other exclusions. 
"All persons " does not really, in this place, mean 
everybody, without regard to any thing but their 
humanity and personality. They must bear some 
relation to the State in which they are enumer- 
ated. What is this? Must they be actually in 
the State at the time? Must they have a home, 
domicile, or permanent residence in the State, 
whether there or not personally ? Must they 
be members of the State, have the franchise ; 
or may they be foreigners, and without right? 
If aliens, friends or enemies ? Must they be 
counted as units or fractions? Be /ree, — enti- 
tled to the freedom of the country, — in dis- 
tinction from foreigners, in distinction from 
bondsmen, or in distinction from slaves ? If 
such questions are not settled by law, they must 
be settled practically by the officer who takes the 
census in every parish, and may have as many 
different decisions as there are such officers. 

§ 241. At this moment [1864] how many 
members of Congress owe their seats to the 
enumeration of traitorous citizens and foreign 
enemies ; how many to aliens, every white one 
being a unit, and every black only three-fifths 
of one ? If persons in the service of the gov- 



238 LEGISLATIVE POWEKS. — SPECIAL. 

ernment, in its armies or otherwise, may be 
counted where they are stationed when the cen- 
sus is taken, they might add several members to 
the delegations of States where they are, and 
detract as many more from States where they 
belong. This would be as unjust to the States 
concerned, as their absolute disfranchisement 
would be to themselves. 

§ 242. By section 4, " The times, places, and 
manner of holding elections for Senators and 
Representatives shall be prescribed, in each State, 
by the legislature thereof; but the Congress may 
at any time, by law, make or alter such regula- 
tions, except as to the places of choosing Sena- 
tors." This involves an inquiry into the nature 
and extent of the power provided for, and into 
the disposition made of it. It authorizes Con- 
gress to do supremely whatever the State legis- 
latures may do provisionally, on any part of the 
subject. Its relation to the general purposes of 
the Constitution, as announced in the enacting 
clause, are sufficiently jialpable; for the govern- 
ment, so necessary for forming " a more perfect 
Union," and executing the whole Constitution, 
could not be organized and maintained without 
it. The authors of the " Federalist " say that this 
provision was inserted on the avowed principle, 
" that every government ought to contain in it- 
self the means of its own preservation." This 
is obviously the true reason, and the only one, 
giving the largest signification to the word pres- 



LEGISLATIVE POWERS. — SPECIAL. 239 

ervicdion. To render the provision adequate to 
its purpose, it is necessary that it should extend 
to every regulation requisite for holding and 
perfecting such an election. The Supreme Court 
have well said, that, wherever the Constitution 
confers a power, it includes with it whatever is 
necessary to render that power effectual. 

§ 243. The 4th section is broad enough to 
include the regulation of the whole elective 
franchise, and the mode of its exercise. General 
provisions of this sort must be made effectual to 
dispose of the whole subject and give it its per- 
fect effect, unless there are other provisions by 
the same authority making a different disposi- 
tion of some parts of it. Whatever particulars 
are elsewhere regulated, need not and may not 
be otherwise disposed of, under this general au- 
thority. It will not be pretended, that, with 
this Article in the Constitution, an election of 
Senators or Representatives could legally be 
allowed to fail, even if there had been no other 
allusion to any part of the subject in the whole 
instrument. This provision alone would have 
furnished ample authority for regulating, by law, 
the whole subject, from the number and qualifi- 
cations of the electors and the elected, to the 
ascertaining and commissioning the officers. 
l^OY will it be pretended, that any matter ex- 
pressly provided for by the Constitution, either 
by direct prece^Jt or by special reference to a 
subordinate power, can be altered or otherwise 



240 LEGISLATIVE POWERS. — SPECIAL. 

regulated under the general authority of this 
section. 

§ 244. For instance, the Constitution says that 
Representatives shall be chosen by " the people," 
and Senators by the State " legislatures," — the 
first for two years, aiul the last for six years; 
and that, for filling vacancies in the first, the 
executive " shall .issue writs of election," and in 
the second, " shall make temporary appoint- 
ments." It will not be contended, that these or 
any other precepts of the Constitution can be 
superseded or interfered with by virtue of this 
4th section. The result is that all elections of 
Senators and Representatives shall be instituted 
and conducted under the authority of this sec- 
tion, in all respects not otherwise provided for 
in this Constitution. Thus the whole subject is 
left precisely where it would have stood if the 
section had been omitted. If Congress is silent, 
the State legislatures may do what they please 
that is not prohibited; and, if the State legisla- 
tures do any thing that ought not to be done. 
Congress may undo it. Of the importance and 
extent of the authority to regulate and control 
the exercise of the elective franchise, there was 
no difference of opinion in the Convention, or in 
the State Conventions. The only difierence was 
where it should be placed. 

§ 245. Mr. Madison said, in the Convention, 
on this section, " These are words of great lati- 
tude. ... Whether the electors should vote by 



LEGISLATIVE POWERS. — SPECIAL. 241 

ballot, or viva voce; should assemble at this 
place or that place; should be divided into dis- 
tricts, or all meet at one place; should all vote 
for all the Kepresentatives, or all in a district 
vote for a number allotted to the district, — 
these, and many other points, . . . might mate- 
rially affect the appointments."^ Mr. Webster, 
in regard to the right of suffrage, lays down 
" two great principles of the American system : 
1st, The right of suffrage shall be guarded, pro- 
tected, and secured against force and against 
fraud. 2d, Its exercise shall be prescribed by 
previous law ; its qualifications shall be pve- 
scribed by previous law; the time and place of 
its exercise shall be prescribed by previous law; 
the manner of its exercise, under whose super- 
vision (always sworn officers of the law) , is to be 
prescribed, and then the results are to be certified 
to the central power, by some certain rule." ^ 

§ 216. To make or alter " regulations " of the 
" times, places, and manner of holding elections," 
does not authorize an abrogation of the consti- 
tutional right of a citizen, or an interference 
with any other regulation fixed by any part of 
the Constitution. It is only to do these things 
for cari-ying out what the Constitution has al- 
ready prescribed, — not to determine in opposi- 
tion to the constitutional right of every citizen, 
but to regulate so as to protect and secure the 
enjoyment of the right. The word qualifica- 

1 3 Madison Papers, 1280. 2 % Webster's Works, 224. 

16 



242 LEGISLATIVE PO WEES. — SPECIAL. 

tions, as used in the first clause of the 2d section, 
can refer only to the exercise of the right, and 
not to the right itself. Members of the House 
of Representatives " shall be . . . chosen by the 
people of the several States." People are citi- 
zens, — citizens of the United States and resi- 
dents in the State. Citizenship and residence are 
the only qualifications of the right ; for if the 
Kepresentatives must be chosen by them, they 
have a constitutional right to choose them, of 
which they nor any of them can be rightfully de- 
prived, otherwise than they may be deprived of 
other rights, — by forfeiture. The qualifications 
for the exercise of the right involve a compli- 
ance with all such regulations as may be neces- 
sary to secure the efiicacy of the right for those 
who have it, and the exclusion of those who 
have it not. Regulation and restriction, so far 
as necessary or useful, may be just and proper; 
but disfranchisement, directly or indirectly, is 
illegal. Such regulations may be made and 
altered, under section 4; but disfranchisement, 
otherwise than for cause, cannot rightfully be 
made by any body. 

§ 247. Among the " many other points " al- 
luded to by Mr. Madison, might be mentioned, 
consistent with the general rights of the citizen 
to the elective franchise, his previous residence; 
payment of taxes and registration ; the fre- 
quency of elections; the permanence, functions, 
and qualifications of the elected; the check list; 



LEGISLATIVE POWERS. — SPECIAL. 243 

the sorting, counting, declaring, and recording 
the votes, and returning the result; the appoint- 
ment of the officers and their authority, under 
whose supervision all this is to be done, together 
with the means of punishing frauds and secur- 
ing the purity of the election. These relate only 
to the mode of guarding and regulating the 
exercise of the right. All this, and still more, is 
included in the time, place, and manner of an 
election ; and such items as are not otherwise 
provided for fall necessarily within the purview 
of this general provision. Several of them are 
regulated in other parts of the Constitution ; but 
such as are not, come within the authority here 
delegated. 

§ 248. The only qualifications of electors of 
Representatives to Congress, according to the 
2d section, are citizenship and residence, being 
of " the people of the several States ; " and it 
is doubted if there can be any others, so far 
as the franchise is concerned. The words " re- 
quisite for electors of the most numerous branch 
of the State legislature," make it necessary that 
the qualifications of electors of State and United- 
States Representatives should be absolutely the 
same, — they must be the same citizens, and no 
others; or at least the electors of State Repre- 
sentatives can have no qualifications in addition 
to those of electors of members of Congress. 
The 2d section does not say by whom these 
qualifications shall be prescribed, for this had 



244 LEGISLATIVE PO WEES. — SPECIAL. 

already been done, so far as concerns the right; 
all else can relate only to the mode of regnlating 
and exercismg the right; and this is expressly 
conferred on Congress by section 4. The quali- 
fications of the right of electors of members of 
Congress being thus fixed and unalterable/ no 
others can be made for State Representatives 
without destroying the identity. If, therefore, 
color or race is not made a qualification for an 
elector of Representatives to Congress, it cannot 
be made a qualification for an elector of State 
Representatives, whoever may regulate it. 

§ 249. The 4th section, now under considera- 
tion, gives the power of ultimate control over 
the election of members of Congress to the na- 
tional legislature. The power to regulate ah ini- 
tio, or to alter regulations otherwise made, is in 
fact a power of control over the whole subject. 
The right of the State legislature is nothing 
more than they exercise on all subjects expressly 
delegated to the general government, when that 
government does not exercise the power. If 
Congress exercises it, the State legislature can- 
not. If Congress does not regulate it, the State 
legislation is valid in this case, as in all others 
where there is no prohibition. But, in both 
cases, the action of Congress is equally decisive. 
So that Congress directly regulates the qualifi- 
cations of the electors of its own members, and 
indirectly or incidentally also the qualifications 

1 See also fourteenth Amendment. 



LEGISLATIVE POWERS. — SPECIAL. 245 

of electors of State Representatives, under the 
authority of this section. 

§ 250. They have, by the express provision of 
this section, the absohite power to regulate the 
election of their own members. Whether they 
directly regulate that of State Representatives, 
or leave it, as they niay, to the State legislatures, 
— in either case, the qualifications of voters for 
the latter must be either exactly the same as 
those of the former, or at least can require 
nothing additional thereto. Perhaps the qualifi- 
cations for electors of State Representatives, 
consistently with the words of the Constitution, 
might be less, but certainly they could not be 
greater, than those for members of Congress. 
1^0 State can add a qualification of color or race, 
or any other, for the election of their own Rep- 
resentatives, after Congress shall have fixed the 
qualifications of their own electors without it. 
This provision for the identity of the qualifica- 
tions of the electors of the national and State 
Representatives, has not unfrequently been rep- 
resented as absolutely conferring the jiower of 
prescribing the qualifications upon the State 
legislatures. But it does not say so, nor neces- 
sarily imply such an intent. 

§ 251. It contains nothing inconsistent with 
any difierent arrangement. Such a one might 
have been added to the 2d section in these 
words, " These qualifications shall be prescribed 
by Congress," in perfect compatibility with all 



246 LEGISLATIVE POWERS. — SPECIAL. 

that precedes. It might also be mserted any- 
where else. But it must be somewhere, or the 
government would be destitute of the means of 
guaranteeing the republicanism of the States, or 
even of preserving its own. Whosoever dis- 
tributes the national sovereignty, as exercised 
by the suffrage, among the few or the many, has 
the uncontrollable power to say whether the 
government shall be a republic, an oligarchy, or 
a monarchy. Even if the 2d section could be 
forced into saying, absolutely, that the qualifica- 
tions should be regulated by the State legisla- 
tures, it would say nothing more than is said 
expressly by the 4th. " The times, places, and 
manner of holding elections" covers the whole 
subject-matter, — the officers, the agents, and 
the thing done. 

§ 252. Whatever " regulations " the State le- 
gislature may make regarding the whole subject, 
Congress may " alter." If a forced construction 
of the 2d section, making it say what it does 
not say, could enable it to escape this controlling 
power of Congress, the consequence would be, 
that " the means of its own preservation," which 
the 4th section was intended to supply to the 
government, would be destroyed, and the gov- 
ernment subjected to all the hazards that section 
was intended to prevent ; and the guarantee 
clause ^ be rendered entirely nugatory, by taking 
away from Congress the power to fulfil it. 

1 Article IV., section 4. 



LEGISLATIVE POWERS. — SPECIAL. 247 

Where such consequences are to be encountered, 
the provision supposed to produce them should, 
in the words of the Supreme Court, " he ex- 
j9ressed ivitJi irresistible clearness,^^ and not left 
to doubtful inference from words that do not 
express it at all. Undoubtedly this power, like 
most others granted to Congress and not pro- 
hibited to the States, may be exercised by them, 
as they have been, until Congress interfere with 
their own. • 

§ 253. The application of this provision to the 
election of Senators is more limited. The num- 
ber and qualifications of Senators, as well as the 
qualifications of. their electors, who must be the 
legislative body, or at least members of that 
body, are fixed by the preceding section. The 
place of choosing Senators is excepted from the 
action of Congress, to prevent the members of 
the State legislature from being called away 
fron> their seat of government, or where they 
may be sitting. Congress is therefore restricted, 
in regard to the election of Senators, to the time 
and manner thereof only. These, in case of 
necessity, may be so regulated by Congress as 
to effect an election, even though a majority of 
■either or both Houses of the State legislature 
should, in violation of their duty undei* the Con- 
stitution, refuse to make one, or even undertake 
to prevent it; both of which our recent expe- 
rience has shown to be among the possible evils 
of our system. 



24:8 • LEGISLATIVE POWERS, — SPECIAL. 

§ 254. It is the duty of the government to 
execute the Constitution; and there can be no 
doubt of the adequacy of their power to do it, 
in whatever form its prevention may be attempt- 
ed. " The general government, though hmited 
as to its objects, is supreme with respect to those 
objects. This principle is a part of the Consti- 
tution ; and if there be any w^ho deny its necessity, 
none can dQuy its authority. To this supreme 
government .ample powers are confided; and, if 
it were possible to doubt the great purposes for 
which they were so confided, the people of the 
United States have declared that they were given 
^ in order to form a more perfect Union, establish 
justice, insure domestic tranquillity, provide for 
the common defence, promote the general wel- 
fare, and secure the blessings of liberty to them- 
selves and their posterity.' " ^ 

§ 255. The words " chosen " and " choosing," 
as applied to the subject, seem to imply the 
suffrages of individual electors ; and the word 
" legislature," to indicate the several act of each 
House, as in legislative action. But the usage in 
different States has varied from this in both re- 
spects, and Congress has never interfered to pro- 
duce uniformity, either as to time or manner; 
and the Senate have never rejected a member on 
account of the mode of his appointment by the 
State legislature, though they have done so on 

1 Per Marshall, C. J., for the Court, in Cohens v. Virginia, 6 Wheat. 
E., 264. 



LEGISLATIVE POWERS. — SPECIAL. 249 

account of the time of the election having been 
too long before the occurrence of the vacancy it 
was intended to supply. They have also settled, 
in a recent New- Jersey case, that, where the two 
Houses go into convention for the election of a 
Senator, without any statute directing the mode 
of election, the convention themselves cannot 
elect by less than a majority of the votes cast. 
They have now (186G), however, passed a statute 
on the subject, prescribing the mode of proceed- 
ing in the election of a Senator. 



CHAPTER XYIII. 

LEGISLATIVE PO WEES. — SPECIAL. 

§ 256. What kind of regulations for holding 
elections are to be prescribed in section 4, under 
the name of the " times, places, and manner " 
thereof ? The terms themselves seem naturally 
to imply, that they relate to the circumstances 
attending the election, and not to the fact of 
there being one, or the right of the 23eople to 
participate in it. Regulations extending beyond 
this could only be justified by the necessity of 
the case, to supply omissions in the Constitution, 
without which the right itself could not be ex- 
ercised. The mode, then, of exercising the 
elective franchise* the preliminary rules, limita- 
tions, and qualifications, as to the manner of 
asserting and using the right, ^ are the legiti- 
mate province of these regulations : and they 
can prescribe these only in accordance with what 
the Constitution has done, and in the particulars 
which it has left to be thus supplied. 

§ 257. The times. This, standing by itself 
and construed alone, would include not only an 

[250] 



LEGISLATIVE POWERS. — SPECIAL. 251 

authority to pi-escribe the year, the month, the 
day, and the hour, but the frequency, — whether 
once a month or a year, or once in ten years, &;c. 
But this clause is only a part of the Constitution ; 
and, when it authorizes times to be prescril^ed 
aliunde, out of itself, it must be understood to 
mean in harmony and consistency with its own 
express provisions. By giving" an authority to 
regulate the times, it does not give an authority 
to repeal or violate any provision of its own, or 
reject all times, with the election itself, and the 
right of the people to hold it. Of course, all that 
can be done under this authority is to regulate the 
times in conformity to the constitutional provi- 
sions elsewhere made. What provisions of the 
Constitution affect and restrain the power that 
would otherwise be included in this, regarding the 
times of holding elections? By the 2d section, 
Kepresentatives shall be " chosen every second 
year ; " and, by the 3d section, Senators shall be 
chosen for six years." So the authority for 
prescribing the " times," in the 4:th section, must 
be restricted within these limits. The elections, 
under this section, could not be held either an- 
nually or triennially for Representatives, nor 
biennially or septennially for Senators. 

§ 258. In regard to "jpZ«ce5," the authority 
on its face is equally absolute and uncondi- 
tional; though, as the Representatives must be 
chosen " by the people of the several States," 
and the person chosen must be " an inhabitant 



252 LEGISLATIVE POWERS. — SPECIAL. 

of that State in which he shall be chosen," it 
is implied that the election must be within the 
bounds and jurisdiction of the State. It was, 
however, objected to this clause, when before 
the Conventions, that the elections for Georgia 
might be required to be held on the Mohawk. 
This is a specimen of the unreasonableness of 
some of the objections to the Constitution. The 
Senators, being chosen exclusively by the State 
legislatures, must of course be chosen where the 
legislature is. So far, the authority in regard to 
places is therefore qualified by other provisions. 
§ 259. The " manner of holding elections," ex 
vi termini, includes every thing else, requiring to 
be provided for, in order to hold successfully an 
election for the purposes specified; and would in- 
clude "the " times " and " places " also, if they had 
not been particularly mentioned under separate 
heads. Whenever it is decided that an election 
shall be held for a particular purpose, and the 
matter is left there without other directions, 
only that the " manner of holding " it shall be 
prescribed by other authority, — it necessarily 
follows that that other authority must make 
all the regulations requisite for accomplishing 
the purposes of the election. The " manner of 
holding elections " is the same thing as the 
mode of accomplishing elections, or, in other 
words, of executing that part of the Constitu- 
tion which requires certain officers to be desig-- 
nated by elections. This includes many circum- 



LEGISLATIVE POWERS.— SrECIAL. 253 

stances not named besides times and places, which 
are named. 

§ 260. "We are now supposing that the Con- 
stitution simply required these elections to be 
made, and left no other directions relating to 
them in any way, but this 4th section. What, 
then, must be done to accomplish the purpose, — 
to execute the Constitution, and "prescribe the 
manner of holding the elections "? Undoubtedly, 
the time and place having been provided for, the 
next essential requisite for holding an election 
would be the appointment of proper officers for 
making the preliminary arrangements, presiding 
over the occasion, and authoritatively ascertain- 
ing and promulgating the result. All this is 
provided for in the 4th section, prescribing the 
manner of holding elections. If the govern- 
mental action should stop here, the effect would 
be to leave all the rest to the discretion of the 
officers, and so the constitutional requirement 
of the election of Senators and Representatives 
would be executed. The officers would sum- 
mon whom they pleased, count what votes they 
pleased, and substantially elect whom they 
pleased. Thus the election would be held, and 
the object accomplished. 

§ 261. But this extent of discretionary power 
would not long be satisfactory. The peoj^le 
would require some rule for determining the 
right to vote and be voted for. This, of course, 
if not left to be arbitrarily settled by the execu- 



254 LEGISLATIVE POWERS. — SPECIAL. 

tive officers, must be settled by the same au- 
thority that prescribes the other requisites for 
holding elections. The other requisites, going 
to secure the purity of the election and the pun- 
ishment of all delinquencies, are numerous and 
important, and equally included in the authority 
of this section ; but the right of voting, and being 
voted for, goes to the foundation of the govern- 
ment, the distribution of the sovereignty of the 
nation, and to the republicanism of the States. 
In the case supposed, all these matters would 
have to be regulated under the authority of this 
section. But, in point of fact, there are other 
provisions of the Constitution, bearing on some 
parts of the subject, and so far interfering with 
what mig'ht otherwise necessarily have been reg- 
ulated under this section. Let us for a moment 
exailiine them. 

§ 262. First, In regard to the elected. Their 
number is fixed by other clauses : Senators abso- 
lutely to two in a State, and Kepresentatives 
provisionally, according to the census, not to ex- 
ceed one for every thirty thousand, though every 
State shall have one. They must have attained 
a certain age, have been citizens of the United 
States for a certain length of time, and be actual 
inhabitants of the State where chosen at the time 
of election. The right of Congress to require 
by law other qualifications has never been exer- 
cised or claimed, and the right of the States to 
do the same, though claimed and exercised, has 



LEGISLATIVE POWERS.— SPECIAL. 255 

never been admitted. Second, In regard to the 
electors also, the 3d section settles that Senators 
shall be chosen by the legislature of each State ; " 
and the 2d section, that Representatives " shall 
be chosen by the people [citizens] -of the several 
States," who of course shall have a right to 
choose them, which cannot be abrogated or de- 
nied. They " shall have the qualifications re- 
quisite for electors of the most numerous branch 
of the State legislature," i.e., shall be the same 
citizens ) for they can constitutionally be no 
others. 

§ 263. In addition to this, the government is 
bound to guarantee to every State in this Union 
a republican foi'm of government; and, as para- 
mount to all other duties, and essential to the 
performance of any of them, they are bound to 
protect and defend their own existence and 
right to perform them all. The last is rather a 
necessary incident to all government, than an 
express provision of the Constitution. These 
are all the provisions, in any j^art of the Consti- 
tution, restricting, or in any manner qualifying, 
the authority given in the dth section. But these, 
being in the Constitution, necessarily bind all 
agents under the 4th section, as well as every- 
body else subject to the Constitution. AVe 
will now examine how far they qualify that 
power. 

§ 264. First, Under this authority to regulate 
elections of Senators and Representatives, and to 



256 , LEGISLATIVE POWERS. — SPECIAL. 

prescribe the manner of them, the number of 
Senators cannot be changed, or the qnahfications 
of their electors ; nor the place of their elec- 
tion altered by Congress, if prescribed by the 
State legislature. But, if the State legislatures 
should prescribe neither time, place, nor manner, 
there can be little doubt that Congress would find 
it inconsistent with their duty to allow the elec- 
tion to fail on that account. If any constitutional 
electors can be found willing to act, Congress 
would be likely to find means to procure an elec- 
tion, whatever might be the disposition of the 
main body on the subject. 

§ 265. Second, In regard to Representatives, 
the Constitution prescribes their qualifications, 
and that their electors must be citizens, — " the 
people of the several States," — and have the 
qualifications requisite for electors of State Rep- 
resentatives. But it does not prescribe the num- 
ber of the Representatives, their apportionment 
to the States, nor the number to be voted for 
by any elector; and it is perfectly obvious, that 
without these no valid election can be held. 
Under the general powers of the Constitution, 
" to form a more perfect Union " and " promote 
the general welfare," Congress, being vested 
with " all the legislative powers " thereof, de- 
fined , to be " power to make all laws necessary 
and proper for executing the Constitution," might 
regulate these subjects; but politicians of the 
State-rights school would say, and say truly, in 



LEGISLATIVE POWERS. — SPECIAL. 257 

the language of Mr. Madison's and Mr. Monroe's 
vetoes, that they did not find a specific authority 
for these particular measures, except in this 4th 
section. 

§ 266. Here they are expressly authorized to 
provide for " holding elections ; " and " the power 
vested . . . carries w^ith it . . . the right to 
make that power eff"ectual," and of course to do 
every thing necessary to make it so. We have 
seen that the effect of the identity of the qualifi- 
cations of State and national electors is not a 
grant, or a vesting of the power to prescribe 
them, or to decide what is requisite, in any body. 
If State legislatures do it, they must do so by 
virtue of power gained by the 4th section, or 
elsewhere than in the 2d section ; or they may do 
it by sufferance, as they make bankrupt laws and 
do other things not prohibited to them, though 
they are expressly delegated to the general gov- 
ernment, and so not reserved to the States or 
j^eople. Whatever the State legislatures may do 
touching any part of the subject of " holding 
elections for Senators or Representatives," must 
be done by virtue of this 4th section, and, of 
course, under the supervision of Congress. ]^or 
is this supervision to be evaded by the States 
undertaking to do any part of it by Constitution, 
rather than by law. If any States should " pre- 
scribe the times for holding elections for RejDre- 
sentatives " to Congress in their constitution, 
instead of doing it by Act of their legislature, 

17 



'258 XEGISLATIVE POWERS. — SPECIAL. 

it is not probable that the effect would be differ- 
ent from what it would be if done the other way. 

§ 267. N^or would it in regard to the " places " 
or " manner " of holding them. Suppose a State 
should provide, by their Constitution, that all 
their elections, State and national, should be 
held at the " times " and " places " of holding 
their county courts; and that the judges, coun- 
sellers, jurors, and officers of the court, should 
be legal voters, and no others, — this would be 
doing by Constitution what they might do by 
law^, in conformity to this section, if there were 
no other constitutional provision. It would " pre- 
scribe the times, places, and [in part] manner 
of holding elections for . . . Representatives " 
to Congress. It would prescribe the qualifica- 
tions of electors of State Representatives, and 
conform the electors of national Representatives 
thereto; thereby disfranchising probably ninety- 
nine hundredths of the citizens of the State. 
But Congress would probably say, either that 
the Act was void, so fai* as it concerned Repre- 
sentatives to Congress, not being an Act of the 
legislature; or that, if the people undertook to 
legislate by themselves, instead of by their Rep- 
resentatives, they did it subject to the same 
supervision : and. they would act accordingly. 
This supervision covers the whole subject of 
elections provided for in the Constitution. 

§ 268. The history of the section shows this 
to have been the object of this clause. There is 



LEGISLATIVE POWERS. — SPECIAL. 259 

no room for doubt, that in the original South- 
Carolina Plan, where it first appears, the authors 
intended that the new government should be as 
entirely dependent on the States as the Confed- 
eration then was. It provided that " each State 
should prescribe the time and manner of holding 
elections by the people for the House of Dele- 
gates," and also that " the qualifications of the 
electors shall be the same as those of the elec- 
tors in the several States for their Representa- 
tives." The Committee of Detail, in their first 
draft of the Constitution, adopted both provi- 
sions with alterations. The last they made to 
read, " The qualifications of the electors shall be 
the same, from time to time, as those of the 
electors in the several States of the most nume- 
rous branch of their own legislatures." In this 
form it was objected by Mr. G. Morris, " that it 
makes the qualifications . . . depend on the will 
of the States," and was altered by him, in the 
revision, to read as it now stands in the Consti- 
tution. 

§ 269. The other the Committee of Detail re- 
jDorted in this form : ^^ The times and places and 
manner of holding the elections of the members 
of each House shall be prescribed by the legis- 
lature of each State ; but their provisions con- 
cerning them may, at any time, be altered by 
the legislature of the United States : " which was 
amended in the Convention as it now stands. 
The question in regard to the last clause turned 



260 LEGISLATIVE POWERS. — SPECIAL. 

upon the fitness of giving the power to the gen- 
eral or State government, and not upon the ex- 
tent of the power. But the discussion in the 
Convention and elsewhere disclosed the views 
of both parties on that subject. The South- 
Carolina delegates said, that "the States could 
and must be relied on in such cases." Mr. Gor- 
ham said, " It would be as improper to take this 
power from the national legislature, as to restrain 
the British Parliament from regulating the cir- 
cumstances of elections, leaving it to the coun- 
ties." 

§ 270. Mr. Madison said, "The necessity of 
a general government supposes that the State 
legislatures will sometimes fail or refuse to con- 
sult the general interest, at the expense of their 
local convenience or prejudice. . . . The States 
ought not to have the uncontrolled right of regu- 
lating the times, places, and manner of holding 
elections. These were words of great latitude. 
It was impossible to foresee all the abuses that 
might be made of the discretionaiy power. . . . 
The inequality of the representation in the legis- 
latures of particular States would produce a like 
inequality in their representation in the national 
legislature, as it was probable that the counties 
having the power in the former case would 
secure it to themselves in the latter." Mr. King 
said, " If this power be not given to the national 
legislature, their right of judging of the returns 
of their own members may be frustrated. This 



LEGISLATIVE POWERS. — SPECIAL. 261 

scheme of erecting the general government on 
the authority of the State Legislatures has been 
fatal to the " Confederation, and is a " dangerous 
idea." 

§ 271. Mr. Hamilton, in the "Federalist," calls 
this section " that provision of the Constitution 
which authorizes the national legislature to regu- 
late, in the last resort, the election of its own 
members ; " and says that it rests on " this plain 
proposition, that every government ought to con- 
tain in itself the means of its own 2^i'ese7^vation.^' 
He goes far, indeed, towards admitting its insuf- 
ficiency, which was perhaps politic, under the 
circumstances of his advocacy; but he says "that 
an exclusive power of regulating elections for 
the national government, in the hands of the 
State legislatures, would leave the existence of 
the Union entirely at their mercy ; " and that this 
clause reserves " to the national authority a right 
to interpose, whenever extraordinary circum- 
stances might render that interposition necessary 
to its safety." This, together with his argument 
for the safety of the power, sufficiently shows 
his idea of its magnitude; though he afterwards 
says, " prescribing qualifications of property for 
those who may elect, or be elected, . . . forms 
no part of it, [because] the quahfications of the 
persons who may choose or be chosen . . . are 
defined and fixed in the Constitution." 

§ 272. 1^0 doubt, so far as they are so defined 
and fixed, they are beyond legislative control. 



262 LEGISLATIVE POWERS. — SPECIAL. 

It will be recollected, so far as respects electors, 
their qualifications are limited by the Constitu- 
tion to citizenship and residence, — being " peo- 
ple of the State ; " but, as to the elected, it would 
be difficult to jjrove that Congress, having the 
exclusive right, in each Plouse, of final judgment 
on the qualifications of their own members, might 
not make some rule that would eflect exclusions, 
beyond the special requirements of the Consti- 
tution. Indeed, the law directing the form and 
substance of their credentials, and requiring 
loyalty to the country, are in the nature of such 
qualifications, and might without doubt be ex- 
tended to other requisites. 

§ 273. In the Massachusetts Convention, Mr. 
George Cabot considered the two branches of 
the national Congress as mutual checks upon 
each other, and argued, that, " if the State legis- 
latures [who are the constituents of the Sena- 
tors] are suffered to regulate conclusively the 
elections of the democratic branch, they may, by 
such an interference, first weaken, and at last 
destroy, that check; they may at first diminish, 
and finally annihilate, that control of the general 
government, which the people ought always to 
have, through their immediate Kepresentatives." 
Mr. Theophilus Parsons, afterwards the learned 
and celebrated Chief Justice Parsons, contended 
that the powers vested in Congress by this sec- 
tion were " not only necessary for preserving the 
Union, but also for securing to the people their; 



LEGISLATIVE POWERS. — SPECIAL. 263 

equal rights of election." ... A State legisla- 
ture, for personal or party purposes, in times 
of popular commotion, " might make an un- 
equal and partial division of the State into dis- 
tricts for the election of Representatives, or they 
might even disqualify one-third of the electors. 
"Without these powers in Congress, the people 
could have no remedy." The Hon. Mr. White, 
on the other side, said, " Suppose the Congress 
should say that none should be electors but those 
worth .£50 or £100 sterling, — can they not do it? 
Yes," says he, " they can." So both parties con- 
sidered the section as covering the whole regula- 
tion of elections, including the qualifications of 
electors and elected, so far as left uncontrolled 
by the Constitution. 

§ 274. In the Yirginia Convention, Patrick 
Henry said, " The control given to Congress 
over the time, place, and manner of holding elec- 
tions will totally destroy the end of suffrage. . . . 
Congress may tell you they have a right to make 
the vote of one gentleman go as far as the votes 
of a hundred poor men. The power over the 
manner admits of the most dangerous latitude. 
. . . They may regulate the number of votes by 
the quantity of property, without involving any 
repugnancy to the Constitution." ^ Mr. Madison ^ 
said " it was necessary to give the general gov- 
ernment a control over the time and manner of 
choosing Senators, to prevent its own dissolu- 

1 3 ElUot's Debates, 60, 175. '^ Ibid., p. 366. 



264 LEGISLATIVE PO WEES. — SPECIAL. " 

tion. With respect to the time, place, and man- 
ner of electing Kepresentatives, ... it was fonnd 
necessary to leave the regulation of these . . . 
subject to the control of the general government, 
in order to enable it to produce uniformity, and 
prevent its own dissolution. . . . Elections are 
now regulated unequally in some States, ]3articu- 
larly South Carolina, with respect to Charleston, 
which is represented by thirty members. Should 
the people of any State, by any means, be de- 
prived of the right of suffrage, it was judged 
proper that it should be remedied by the general 
government." He had said on another occasion,^ 
speaking of "the qualifications of electors and 
elected, — if the legislature could regulate those 
of either, it can by degrees subvert the Consti- 
tution. A republic may be converted into an 
aristocracy or oligarchy, as well by limiting 
the number capable of being elected, as the 
number authorized to elect. . . . Qualifications 
founded on artificial distinctions may be devised 
by the stronger, in order to keep out partisans 
of a weaker faction." Mr. George Mason, on 
the other side,^ said " that Congress may, by this 
claim, take away the right of representation, or 
render it nugatory, despicable, or oppressive. 
It is at least argumentative, that what may be 
done will be done." 

§ 275. In the JSTorth-Carolina Convention,^ 
Mr. Spencer objected to this clause, that it gave 

1 5 EUiot, 404. 2 3 ElUot, 403. ^ 4 Elliot, 52. 



LEGISLATIVE POWERS. — SPECIAL. 265 

Congress " an absolute control over the election 
of Representatives." — " They may alter the 
mode of election, so as to deprive the people of 
the right of choosing." — " It puts all but the 
jolace of electing Senators into the hands of Con- 
gress." Mr. Iredell, afterwards Mr. Justice 
Iredell of the Supreme Court, answered that 
it could not affect what was elsewhere settled 
by the Constitution. Senators were chosen for 
six years, and Representatives for two years 
only. But, he added, " If a State should be 
involved in war, and its legislature could not as- 
semble, it might be useful; [or if] a few powerful 
States should combine, and make regulations 
concerning elections which might deprive many 
of the electors of a fjiir exercise of their rights, 
and thus injure the community. It seems natural 
and proper that every government should have 
in itself the means of its own preservation. ^ 
few of the great States might combine to pre- 
vent any election at all." Mr. Bloodworth said, 
" May not their power over the manner of elec- 
tion enable them to exclude from voting every 
descrij)tion of men they please ? The democratic 
branch is . . . much endangered." 

§ 276. Governor Johnston said, " Congress 
can have no other power than the States had. 
The States, with regard to elections, must be 
governed by the Articles of the Constitution ; so 
must Congress." Mr. Davie said, " If Congress 
had the power of making the law of elections 



266 LEGISLATIYE PO WEES. — SPECIAL. 

operate throughout the United States, no State 
could withdraw itself from the national councils 
without the consent of a majority of the members 
of Congress. . . . "When the councils of America 
have this power over elections, they can, in spite 
of any faction in any particular State, give the 
people a representation. . . . Congress has ulti- 
mately no power over elections, but what is 
primarily given to the State legislatures. . . . 
"When aristocracies are formed, they will arise 
within the individual States. It is therefore ab- 
solutely necessary that Congress should have a 
constitutional power to give the people at large 
a representation in the government, in order to 
break and control such dangerous combinations." 
In the South-Carolina Convention, General C. C. 
Pinckney said, " It is absolutely necessary that 
Congress should have this superintending power, 
lest, by the intrigues of a ruling faction in a 
State, the members of the House of Rej^resen- 
tatives should not really represent the people of 
the State ; and lest the same faction, through 
partial State views, should altogether refuse to 
send Representatives to the general govern- 
ment." 

§ 277. In the ]^ew-York Convention, Mr. Jay, 
afterwards Mr. Chief Justice Jay, said, " Sup- 
pose that, by design or accident, the States 
should neglect to appoint Representatives, cer- 
tainly there should be some constitutional rem- 
edy." Mr. Robert Morris said, "It was absolutel^^^ 



LEGISLATIVE POWERS. — SPECIAL. 267 

necessary that the existence of the general gov- 
ernment should not depend, for a moment, on 
the will of the State legislatures." In the Penn- 
sylvania Convention, Mr. Wilson, afterwards 
Mr. Justice "Wilson of the Supreme Court, said, 
" Without this clause, it [the government] would 
not possess self-preserving power. . . . Some 
States might make no regulations at all on the 
subject; it is possible, also, that they may make 
imj)roper regulations. The members of our [the 
popular] branch of the general legislature would 
be the tenants at will of the electors of the other 
branch, and the general government would lie 
prostrate at the mercy of the legislatures of the 
several States." 

§ 278. There was no difference of opinion as 
to the extent or importance of the power, but 
only where it should be lodged. The State- 
rights party wanted it to be vested in the State 
legislatures, because they saw, that, if it was so,^ 
the new government would be like the Confede- 
ration, entirely dependent on the States ; and the 
other party wanted it vested in Congress, be- 
cause they wanted an independent " firm national 
government," adequate not only to its own self- 
defence and preservation, but to all " the exigen- 
cies of government, and the preservation of the 
Union." All the evil that one party saw Con- 
gress might do, with this supervisory power, 
the other party saw that the State legislatures 
could do without it. So the question turned, 



268 LEGISLATIVE POWERS. — SPECIAL. 

not on the nature of the power, but on the pre- 
dilection of the parties as to the character of 
the government to be created. While one party 
wished so to organize the government as to 
enable it to do good, the other wished so to 
hamper it as to prevent its doing any thing, for 
fear that it might do evil. 

§ 279. It is perfectly apparent, from these ex- 
tracts from the debates, that it was well under- 
stood by both parties, that the whole law of 
elections, subject to the provisions of the Con- 
stitution, was under the control of Congress. 
The number, selection, and qualifications of elec- 
tors and elected were, so far as they were left 
unsettled by the Constitution, as much so as any 
other branches of the subject. The equal rights 
of the people in the elective franchise, and the 
just distribution of their power of choice, were 
held to be within the prerogative of Congress, 
as much as time and place of exercising them. 
A State legislature could no more disfranchise 
three-fourths, one-half, or one-fourth of the adult 
male citizens of the State, or admit aliens to 
the franchise, without a remedy in Congress, 
than they could prohibit an election altogether, 
or substitute one of their own for that of the 
people. The Constitution is the same to-day as 
it was then, notwithstanding its infringement 
has been so long tolerated; and it is the duty of 
Congress to see, that no aristocracy, oligarchy, 
or privileged class is allowed to usurp the rights 



LEGISLATIVE POWERS. — SPECIAL. 269 

of the people, or disfranchise any portion, much 
less one-half or a majority, of their own citizens. 
§ 280. This is what rendered the clause so 
important to the people, in order to enable their 
government to defend their own existence, and 
to secnre a republican government to the States. 
Of what comparative consequence was it, whether 
the vote was taken this week or next, in the 
shire town or the half shire, by ballot or viva 
voce? The great question was, whether the peo- 
ple should have any security for being allowed 
to vote at all, — the regulation of the suffi'age, 
— so that the whole people should have a free 
and equal election. If the matter was left to 
the uncontrolled management of the State legis- 
latures, they might limit the suffrage to a par- 
ticular class, a privileged order of the people ; or 
they might say that they were the people, and 
take the election into their own hands; or they 
might prohibit the election altogether. We have 
have had examples of each sort. In some of the 
Southern States, less than half, or even a third, 
of the adult male citizens have been allowed to 
participate in the elections. In South Carolina, 
the legislatures have always taken the election 
of President and Vice-President into their own 
hands, and excluded the people altogether. An 
instance of the third kind was when eleven 
States withdrew their whole delegation and pro- 
hibited any new election, and insisted that it was 
all constitutional. 



270 LEGISLATIVE POWERS. — SPECIAL, 

§ 281. After a four years' war, to prove tlie 
contrary, Congress are still in doubt whether 
fthey have any right to prevent the whole course 
from being re-enacted next year, or even from 
being practised under their own eyes to-day. 
Even now (1866), a large majority of the free 
adult male citizens are absolutely disfranchised 
in some of the States, 'and a quarter or a third 
part of them in several others, by State laws, in 
defiance of the Constitution. These are all loyal 
citizens, — loyal to the Constitution and to the 
government. It is true they are not disfranchised 
avowedly because they are loyal ; but they might 
,be, just as well as for no reason at all; and the 
disfranchisement extended to everybody that was 
so, and include every man in the State who would 
accept an office, civil or military, serve as a sol- 
dier or sailor in the army or navy of the United 
States, or take an oath of allegiance to the Con- 
stitution. Thus the government is liable to be 
driven out of any State, if they will not execute 
their own power for their own protection, and 
for that of the people, l^ot only the repub- 
licanism of the States, but the republicanism of 
the United States, and even the existence of the 
nation in any form, is left dependent on pre- 
vailing factions, in these subordinate local organ- 
izations. 

§ 282. By the 4th section, also. Congress 
may appoint the time of their own annual ses- 
sions; and by the 6th determine the amount of 



LEGISLATIVE POWERS. — SPECIAL, 271 

compensation for their own services, to be paid 
out of the treasury of the United States. "When 
the Constitution says a thing shall be done " by 
law," it means it shall be done by Congress; 
for the whole legislative power, or power to 
make laws, is vested in Congress. Section 7 
vests in Congress the right, by a two-thirds vote 
of each House, by yeas and nays entered on 
their respective Journals, to overrule the Presi- 
dent's veto, or objections to the passage of any 
law sent to him for his approval. 



CHAPTEE XIX. 

LEGISLATIVE POWERS. — SPECIAL. 

§ 283. The 8th section, on account of its 
length, the variety arid importance of its sub- 
jects, and still more on account of the use that 
has been made of it, requires particular atten- 
tion. It was well observed by the " Federalist," ^ 
" That it is both unwise and dangerous to deny 
to the Federal government an unconfined au- 
thority, in respect to all those objects which are 
intrusted to its management. ... A govern- 
ment, the Constitution of which renders it unfit 
to be intrusted with all the powers which a free 
people ought to delegate to any government, would 
be an unsafe de230sitory of the istation^al intek- 
ESTS." !N^otwithstanding this, the State-rights 
school of politicians have constantly held, con- 
trary to the introductory clause of the Consti- 
tution, that the objects of the government were 
few and narrowly limited, and that the means 
given for their execution were only those with- 
out which they could not be executed. Mr. 

1 No. 23. 
[272] 



LEGISLATIVE POWERS. — SPECIAL. 273 

Jefferson does not hesitate to say, " It was in- 
tended to lace them up strictly within the enu- 
merated powers, and those without which, as 
means, those powers could not be carried into 
effect." 1 

§ 284. By enumerated powers,^ he and all his 
followers mean those mentioned in this section; 
and, by " necessary and proper " means, they 
understand those only without which the evm- 
merated j^owers themselves would be wholly void. 
This view of the Constitution has been main- 
tained mainly by two wholly gratuitous and false 
assumptions. 1st, That the introductory or enact- 
ing clause is no part of the Constitution; and, 
2d, That this 8th section is an enumeration of 
the powers of the government. They are both 
gratuitously assumed, because the Constitution 
affords no foundation for either. They are both 
false, because the direct assertions of the Con- 
stitution contradict them. In regard to the first, 

1 Opinion on the Bank, February, 1791. 

'•^ Mr. Monroe says (Message, May 4, 1822), "The powers specifically 
granted to Congress are what are called ' the enumerated powers,' and are 
numbered in the order in which they stand ; among which, that con- 
tained in the first clause [taxation] holds the first place in point of 
importance." 

Mr. Madison says (Veto Message, March 8, 1817), " The legislative 
powers vested in Congress are specified and enumerated in the 8th sec- 
tion of the first Article of the Constitution ; and it does not appear, that 
the power proposed to be exercised by the bill is among the enumerated 
powers." 

Mr. Jefferson says (Opinion on the Bank, Feb. 15, 1791), " The 
powers specially enumerated are : 1st, The power to lay taxes for the 
purpose of paying the debts of the United States. . . . 2d, To borrow 
money ; 3d, To regulate commerce," &c. These are powers of Con- 
gress in the exact order in which they stand in the 8th section. 

18 



274 LEGISLATIVE POWEKS. — SPECIAL. 

it has been sufficiently shown, that the introduc- 
tory or enacting clause is in the Constitution, 
and a part of the supreme law of the land.^ 
The second will be examined here and now. 

§ 285. This section, though forming, gram- 
matically, but a single sentence, is divided into 
eighteen distinct members of a sentence. As 
commonly printed, and doubtless by authority, 
though not of the Convention or of the people, 
these distinct members have been marked by 
numbers from one to eighteen inclusive, and 
thus become enumerated. But this numerical 
designation of the different members of this 
sentence was not in the original, and forms no 
part of the Constitution, but is altogether an 
interpolation. The only authorized numerical 
division of the Constitution is into Articles and 
sections. Upon this interpolation is founded 
the idea of enumerated powers. And upon the 
unauthorized rejection of the enacting clause, 
containing all the objects and duties of the gov- 
ernment, the idea is founded that here are the 
actual powers of the government; whereas the 
section itself declares them to be only the special 
powers of Congress, or that portion of the gen- 
eral power of the government, which, on dis- 
tribution, falls to them as one of the departments 
of the government. So that the common phrase, 
the enumerated powers of the government, as ap- 
plied to this section, involves two manifest errors : 

1 Ante, p. 75. 



LEGISLATIVE POWERS. — SPECIAL. 275 

1st, That these powers are actually enuraerated, 
or called enumerated, in some part of the Con- 
stitution ; and, 2d, That they are the powers 
of the government generally, when they are 
expressly specified as powers of the legislative 
department only, in the same manner as other 
2)owers are called the powers of the executive or 
judicial department. 

§ 286. And they are but a portion even of 
these ; for many more than are mentioned in this 
section are specified in other sections as belong- 
ing to Congress, or necessarily devolving on 
them as the legislative department. Yet this 
unauthorized enumeration of a part only of the 
specific powers of one department, has been 
represented and treated as an exact specification 
of all the powers of the government, been called 
the enumerated powers, and made to officiate, 
when occasion required, as an absolute limitation 
of their rights and duties. Indeed, the single 
fact, that the Constitution confers some powers 
in particular, has been made use of as an argu- 
ment to prove that it could confer no powers in 
general, covering* those particulars. 

§ 287. Mr. Jefferson says,^ "To consider the 
. . . phrase [to provide for the general wel- 
fare] ... as giving a distinct and indepefident 
power, . . . would render all the . . . enumera- 
tions of power completely useless. It would 
reduce the whole instrument to a single phrase, 

1 Ubi sup. 



276 LEGISLATIVE POWERS. — SPECIAL. 

—that of instituting a Congress [or government] 
with power to do whatever would be for the good 
of the United States." J^rgo, the argument is, 
the Constitution contains no such power. Mr. 
Madison says/ " The terms ^ the common defence 
and general welfare,' embracing every object and 
act within the purview of a legislative trust," 
would render " the special and careful enumera- 
tion of powers . . . nugatory and improper." 
The whole school of State-rights politicians, in- 
cluding Monroe, Calhoun, and Jefferson Davis, 
have reasoned in the same way. 

§ 288. That such an argument should have 
been used and pressed by the authors of the 
Kentucky and Yirginia Resolutions of 1798 and 
1799, and maintained by their followers, is no 
matter of wonder. It was necessary for their 
purposes; and it was therefore, in their view, 
politic and expedient to sustain it. But the idea 
has unfortunately higher authority than either 
or all of them. Alexander Hamilton, in the 83d 
number of the " Federalist," says, " The plan of 
the Convention declares, that the power of Con- 
gress, or in other words of the national legisla- 
ture, shall extend to certain enumerated cases. 
This specification of particulars evidently ex- 
cludes all pretension to a general legislative 

1 Veto Message, March 3, 1817. — He says, in his speech on the Cod- 
fishery Bill, in February, 1792, " This is not an indefinite government, 
deriving its powers from the general terms prefixed to the specified powers ; 
but a limited government, tied down to the specified powers, which 
explain and define the general terms." 



LEGISLATIVE POWERS. — SPECIAL. 277 

authority; because an afiii'mative grant of spe- 
cial powers would be absurd, as well as useless, 
if a general authority was intended." ^ 

§ 289. This evidently refers to the different 
parts of the first Article, where " all the legis- 
lative powers " of the government, and subse- 
quently certain specific powers, are vested in 
Congress. It was not used by him in the way 
of argument against the general legislative 
powers of the government, arising from the fact 
that particular powers are also delegated ; for 
that subject w\as not then under discussion. He 
w^as arguing against an improper use, made by 
his opponents, of the maxim, "that a specification 
of particulars is an exclusion of generals ; " and, 
after proving their error, he proceeds as above, 
in order to illusti'ate incidentally his own idea of 
what Avould be a proper use of that maxim. It 
should be remembered, too, that he was anxiously 

1 And yet he says, in his Report on Manufactures, Dec. 5, 1791, " The 
objects to which it [the revenue] may be appropriated are no less com- 
prehensive than tlie payment of the public debts, and the providing for 
the common defence and general welfare. . . . The phrase is as compre- 
hensive as any that could have been used ; because it was not fit that the 
constitutional authority of the Union, to appropriate its revenues, should 
have been restricted within narrower limits than the general welfare ; and 
because this necessarily embraces a vast variety of particulars, which are 
susceptible neither of specification nor definition. ... A power to appro- 
priate money with this latitude . , . is granted, too, in express terms." 

If a specification of particulars excludes generals, then the Consti- 
tution, by granting the power to punish in one class of cases only, has 
prohibited Congress from punishing in any other cases. — Per Mr. Justice 
Johnson, Opinion of the Court in Anderson v. Dunn, 6 Wheat., 20 i. 
" The idea that the express grant in one class of cases repelled the as- 
sumption of the punishing power in any other, never occurred to any 
one." — Ibid. 



278 LEGISLATIVE POWERS. — SPECIAL. 

laboring to convince the people, against all their 
prejudices, that Congress had not too much 
power. But, after all, the marvel is, that such a 
sentiment could have escaped from his pen, at 
any time, under any circumstances, and for any 
purpose; since he himself thereby committed a 
greater error than that of which he had just con- 
victed his opponents. 

§ 290. At the moment it was written, there 
was not a Constitution in the land that was 
not formed in just that way: vesting, first, the 
general legislative power in the appropriate 
department; and then, in subsequent Articles, 
specifying particular things as within their au- 
thority. Even Mr. Madison says, " ]N'othing is 
more natural or common than first to use a gen- 
eral phrase, and then to explain or qualify it by 
a recital of particulars." ^ 'Not that the particu- 
lars cover the whole of the generals, or add 
any thing to them. They only assist in expound- 
ing them, by affording specimens of such as 
disclose the nature and character of those of 
which the generals are composed. 

§ 291. By the constitution of ISTew Hamp- 
shire, " The supreme legislative power . . . shall 
be vested " in the General Court, to whom " full 
power and authority are hereby given and grant- 
ed ... to make, ordain, and establish all man- 
ner of wholesome and reasonable orders, laws, 
statutes, ordinances," in the broadest possible 

1 Federalist, No. 41. • 



LEGISLATIVE POWERS.— SPECIAL. 279 

terms, " as they may jucl^e for the benefit and 
welftire of the State." JSTotwithstanding this 
plenary grant of general legislative authority, 
the same constitution sj)ecifies in particular 
many items, which are all included in the gen- 
eral grant, and would have been equally avail- 
able if not individually mentioned at all. For 
instance, " to erect and constitute judicatories, 
and courts of record or other courts ; ... to 
j)rovide . . . for ... all civil and military offi- 
cers," and set forth their powers and duties, oaths, 
&c.; "to impose fines, mulcts, imprisonments, and 
other punishments;" "to impose and levy . . . 
assessments, rates, and taxes," &c., &c. ; specify- 
ing, in particulars almost without number, items 
of power and duty of the legislative department, 
all of which were before included in their gene- 
ral legislative authority. 

§ 292. The constitution of Massachusetts con- 
ferred the power of general legislation in nearly 
the same broad and unqualified terms, and is 
equally filled with special provisions, confer- 
ring specific powers on that department. We 
might go through the whole list of State con- 
stitutions with a similar result, including the 
Confederation, by which the Union was then 
nominally held together. But the most striking 
example, in reference to the application of the 
maxim in question, is his (Mr. Hamilton's) 
own draft of a Constitution for the United 
States, presented to the Convention in his speech 



280 LEGISLATIVE PO WEES. — SPECIAL. 

of June 18, 1787. It is there provided, that 
" the legislature of the United States shall have 
power to pass all laws which they shall judge 
necessary to the common defence and safet}^, and 
to the general welfare of the Union." Special 
power, however, is elsewhere given to the legis- 
lature to " provide for the . . . elections of Rep- 
resentatives, apportioning them in each State," 
and for the " elections of Senators; " "to provide, 
by permanent laws, such regulations as may be 
necessary for the more orderly election of Presi- 
dent;" to "admit new States into the Union;" 
and to do divers other things therein specially 
named. 

§ 293. If the test should be applied to every 
Constitution made since that time, the result 
would be the same. The constitution of every 
State in the Union, in force to-day, would pre- 
sent the same phase. The maxim in question is 
supposed to have been founded on the famous 
saying of Lord Bacon, that " exception strength- 
ens the force of law, in cases not excepted ; and 
enumeration weakens it, in cases not enumer- 
ated." But, whatever may be considered its 
origin, it can have no applicability to this part 
of the Constitution of the United States. The 
1st section vests " all the legislative powers " 
of the Constitution in Congress, and subsequent 
sections vest particular powers in the same body. 
These grants of power may be repetitions, redu- 
plications, or pleonasms, with respect to each 



LEGISLATIVE POWERS. — SPECIAL. 281 

other ; but no one or more of tliem, however 
comprehensive or restrictive, can supersede or 
abrogate any other. It would be as sensible to 
contend that the commercial power superseded 
the money and currency powers, or the war 
power the army and navy power, as it would be 
to insist that the power " to constitute tribunals " 
abrogated the power " to establish justice," and 
the power " to declare war " the power of " com- 
mon defence." And either of them would be as 
sensible as it would be to say, that the special 
powers supersede the duty of providing for the 
safety, Avelfare, and liberty of the ]3eople ; or that 
the safety, welfare, and liberty of the people, are 
only to be sought and secured through the par- 
ticular regulations specifically authorized and 
j^rescribed. 

§ 294. It is difficult to consider a suggestion 
of the idea, that special grants of power to Con- 
gress were intended as a full specification of the 
particulars of the rights and duties of the gov- 
ernment under a Constitution avowedly ordained 
"in order to form a more perfect union, estab- 
lish justice, insure domestic tranquillity, provide 
for the common defence, promote the general 
welfare, and secure the blessings of liberty," — as 
strictly compatible with honesty of purpose in 
reasoning. They do not purport to be a specifi- 
cation for any purpose, or the particulars of any 
whole. They are not embodied or aggregated 
for any purpose, but scattered throughout the 



282 LEGISLATIVE POWERS. — SPECIAL. 

whole instrument. The 8th section cannot be 
such specification, because it contains but a frac- 
tion of the particulars themselves. It requires 
all the parts to constitute a whole; and, if any 
smaller number of parts are expected to limit, 
restrict, or in any respect change the form of 
that whole, a special authority must be shown 
for that purpose. 

§ 295. But what renders it absolutely impos- 
sible that any or all the special powers should 
have been intended to limit the general powers, 
is that the special powers themselves expressly 
reiterate and confer all the general powers. The 
8th section authorizes Congress " to pay the 
debts, and provide for the common defence and 
general welfare, of the United States," which 
is an abridgment or epitome of all the avowed 
purposes of the Constitution, and of all the 
legitimate purposes of any free government. 
The last clause of the section is, if possible, still 
more explicit, expressly giving Congress power 
" to make all laws . . . necessary and proper for 
carrying into execution the . . . powers vested 
... in the government of the United States, or 
in any department or oflS.cer thereof." The gen- 
eral legislative power is here renewed and again 
vested in Congress, in as broad and comprehen- 
sive terms as it was originally granted in the 1st 
section, under the name of " all legislative pow- 
ers " of the Constitution. So that there can be 
no ground for an argument, that, in this place, 



LEGISLATIVE POWERS. — SPECIAL. 283 

a specification of particulars is an exclusion of 
generals. 

§ 296. All the express restrictions on the 
powers of Congress go far to prove the exist- 
ence of the power restricted ; for who will charge 
the framers of our Constitution, or the Ameri- 
can people, with the absurdity of restncting a 
non-existing power? ^ These restricted j)owers 
will be usually found among the more general 
and undefined legislative powers of the govern- 
ment. The particulars under this head are 
numerous and satisfactory*. We will cite a few 
of them. 

• § 297. By the 4th section. Congress shall meet 
annually " on the first Monday in December, un- 
less they shall by law appoint a different day." 
This implies that Congress have the power to 
appoint any day they please for their annual- 
sessions; and they have practised accordingly. 
"Where is the power delegated? Certainly there 
is no special and particular provision in the Con- 
stitution to this effect. By section 9, " The mi- 
gration or importation of persons . . . shall not 
be prohibited by Congress " for twenty years ; 
which implies that both may be done afterwards : 
and they have been done. By what right? If 
it be said by the commercial power, it may be 

1 "It would be absurd ... to except from a granted power that 
which was not granted, or that which the words did not comprehend." 
—2 Story's Com., 508. 

" It is a rule of construction, that exceptions from a power mark its 
extent." — Per Cur., in Gibbons v. Ogden, 9 Wheat. R., 191. 



284 LEGISLATIVE POWERS. — SPECIAL. 

added, that the commercial power itself is but 
a fraction of the general power which regulates 
the foreign intercourse of the people, in order 
to provide for the " defence and welfare " of the 
United States. The writ of hcibeas corpus was 
a common-law right, everywhere respected in 
the United States before and at the time of the 
adoption of the Constitution, for the protection 
of personal liberty. By this 9th section, it is 
in effect made perpetual, with the liberty it 
protects, for, if the right " shall not be suspend- 
ed " or temporarily abrogated, a fortiori it shall 
not be repealed or permanently abrogated. This 
restriction is certainly applicable to Congress as- 
well as the executive, and every body else hav- 
ing any control over the subject. But what 
special power is given to Congress over the 
liabeas corpus, other than what is included in 
the general legislative power of the government? 
§ 298. " ]^o bill of attainder, or ex post facto 
law, shall be passed." According to the best 
authorities, these are not rightfully within the 
category of legislative powers at all.^ But the 
British Parliament had often passed such stat- 
utes before our Revolution, and many of our 
Kevolutionary legislatures afterwards ; so it was 

1 " A law that punishes a citizen for an innocent action, or, in other 
words, for an act which, when done, was in violation of no existing law ; 
a law that destroys or impairs the lawful private contracts of citizens ; a 
law that makes a man judge in his own cause ; or a law that takes prop- 
erty from A, and gives it to B, — is contrary to the great first principles of 
the social compact, and cannot be considered as a rightful exercise of legis- 
lative authority." — Calder v. Bull, 3 Dall. Rep., 386, per Chase, J. 



LEGISLATIVE POWERS. — SPECIAL.* 285 

adjudged wise, ex dbundanti cautela, to insert 
this express restriction, lest a similar power 
should be wrongfully claimed, not by any speci- 
fic grant certainly, but under the general au- 
thority of the Constitution. But the wisdom 
and expediency of even this restriction, unneces- 
sary though it may be held to have been, car- 
ries with it a broad and irrefragable implication 
in favor of the validity of any other statute, 
coming within the rightful purview of legiti- 
mate legislation, and free from any such restric- 
tion. 

§ 299. "!N^o money shall be drawn from the 
treasury, but in consequence of appropriations 
made by law." Congress then, who, by being 
made the legislative department of the govern- 
ment, make the law, may appro^^riate the money 
in the treasury to any object they please, within 
the range of the general purposes of the Con- 
stitution. "IS^o title of nobility shall be grant- 
ed," aud no religious test required, &;c. How 
could it have been, independent of this prohibi- 
tion? ^o special grant confers such a power on 
any department of the government. Other pro- 
hibitions in the 9th section, as in regard to capi- 
tation taxes, duties on exports, appropriations of 
money, &c., are restrictions on express poAvers 
specially delegated. 

§ 300. The first Amendment is even more 
explicitly to our purpose, than any of the above. 
It relates to the establishment and free exercise 



286 •LEGISLATIVE POWERS. — SPECIAL. 

of religion, freedom of speech and of the press, 
peaceable assemblies of the people, and the right 
to petition the government. Which of the enu- 
merated powers, as they have been insidiously 
called, or what other specific power mentioned 
in any part of the Constitution, authorizes Con- 
gress to touch any one of these subjects, for 
any purjDose whatever? Why, then, restrict the 
power? So of "the right to keep and bear 
arms," and divers other valuable common-law 
rights. Obviously they are all carefully guard- 
ed* because, under the general powers of the 
government to provide for Ihe common defence, 
the general welfare, and the blessings of lib- 
erty, and to do any thing necessary and proper 
for those purposes, nothing could be said to be 
beyond the legitimate claims of an agent charged 
witlj these duties. 

§ 301. Mr. Madison said, in the speech above 
quoted, " If Congress can employ money indefi- 
nitely to the general welfare, and are tjie sole 
and supreme judges of the general welfare, they 
may take the care of religion into their own 
hands. They may appoint teachers in every State, 
county, and parish, and pay them out of their 
public treasury; they may take into their own 
hands the education of children, establishing in 
like manner schools throughout the Union; they 
may assume the provision for the poor ; they 
may undertake the regulation of all roads other 
than post-roads; in short, every thing, from the 



LEGISLATIVE POWERS. — SPECIAL. 287 

highest object of State legislation, down to the 
most minute object of police, would be thrown 
under the power of Congress; for ever^^ object 
I have mentioned would admit the application of 
money, and might be called, if Congress pleased, 
provisions for the general welfare." As Con- 
gress have, by express grant, unlimited power 
to levy and borrow money, and appropriate it to 
" the common defence and general welfare," 
what could be more natural or proper than the 
restrictions, in these Amendments, of this great 
power, if the people desired so to restrict it? 
But if, as Mr. Madison attempts to argue, in the 
face of the express words of the instrument, 
the Constitution delegates no such power, what 
could be more absurd, and even ridiculous, than 
to enact restrictions? 

§ 302. Thus the plenary powers of general 
legislation for the public welfare, as embraced 
m the enacting clause, for the great purposes of 
government, are vested in Congress, and are 
limited only by the laws of God, the principles 
of free government, and the express or implied 
restrictions of the Constitution. These two false 
and groundless assumptions — to wit, that the 
first paragraph is no part of the Constitution 
or supreme law; and that the 8th section is an 
actual specification, by way of eminence, the 
enumerated powers of the government — form 
the whole foundation, and only apology for that 
stupendous perversion of the Constitution known 



288 LEGISLATIVE POWERS. — SPECIAL. 

as the State-rights doctrine, which has upheld 
slavery and culminated in rebellion, both equally 
opposed to the whole letter and spirit of the 
Constitution. 



CHAPTER XX. 

LEGISLATIVE POWERS. — SPECIAL. 

The Financial Powers. 

§ 303. The 8th section begins, "The Congress 
shall have j^ower," &c. This vests certain pow- 
ers, afterwards named, in Congress, which had 
already been designated as the depositary of " all 
the legislative powers " of the government. It 
does not purport to be a catalogue, a specifica- 
tion, or even an epitome, of those powers, and least 
of all an enumeration of them. It simply grants 
certain powers, therein named, to Congress; as 
other sections preceding and following it have 
granted other powers to them, more in number, 
and some of them of much greater importance, 
than some of these. Here is not only no dis- 
paragement of others not herein named, vested 
in the government generally, or in Congress par- 
ticularly ; but there is at the end an express 
mention made of " all other powers vested by 
this Constitution in the government ... or any 
department . . . thereof," showing with certain- 
ty that there are " other powers " vested in the 

19 [289] 



290 LEGISLATIVE POWERS. — SPECIAL. 

government and in Congress : for all the powers 
of the government are to be executed through 
the departments, and the appropriate portion of 
them inures directly to Congress. So it is abso- 
lutely impossible that this 8th section should be 
either an enumeration or a specification of the 
powers of either, because it expressly recognizes 
others of both kinds. 

§ 304. The first item is in three parts: 1st, 
" To lay and collect taxes, duties, imposts, and 
excises ; " 2d, " To pay the debts, and provide for 
the common defence and general welfare, of the 
United States ; " 3d, " But all duties, imposts, 
and excises shall be uniform throughout the 
United States." The second item is, " To bor- 
row money on the credit of the United States." 
These two items constitute the principal sources 
of the revenue, or the pecuniary means of sus- 
taining the government and accomplishing the 
objects for which it was ordained and estab- 
lished.^ They are substantially unlimited. The 
power of borrowing is wholly so. They may 
borrow at any time, in any manner, anywhere, 
of anybody, to any amount, and on any terms, 
as to security, payment, or interest. They maj^ 
levy and collect taxes, duties, imposts, and ex- 

1 Revenue lies at the foundation, and constitutes a most important 
part, of all the powers of the government. Without it they could not pro- 
vide for the common defence, promote the general welfare, secure the 
blessings of liberty, or even continue their own existence. The money 
power might well have been considered under this head ; but we have 
chosen to place it rather under the next, or commercial power. 



LEGISLATIVE POWERS. — SrECIAL. 291 

cises, to any amount, at any time, on persons, 
property, or estate, for any purpose which the 
government is authorized to promote, and in any 
manner; with only the three quahfications of 
uniformity, apportionment, and exemption, which 
will be considered under the next section. 

§ 305. Attempts have been made to limit the 
power to the single purpose of raising revenue; 
but they have uniformly failed. The first statute 
on the subject expressly recognized in its pre- 
amble the encouragement of manufactures as 
one of the objects in view; and subsequent Acts 
have been adjusted to the interests of commer- 
cial, agricultural, and manufacturing industry, 
as \vell as to revenue. When money is collected 
and received into the treasury, it can only be 
drawn out " in consequence of approj)riations 
made by law ; " ^ and Congress can pass no law 
on this or any other subject, but such as is cal- 
culated to accomplish some of the avowed pur- 
poses for which the Constitution was made. So 
that all appropriations must be made " for carry- 
ing into execution the powers vested in the gov- 
ernment." The design or object of a tax may 
be to foster and protect the subject on which it 
is levied, or to limit and destroy it or any of its 
adjuncts. " The power to tax involves the power 
to destroy."^ 

.§ 306. This power of taxation, including all 
the forms of levying, the selection of subjects, 

1 Section 9. 2 pgr Marshall, C. J., 4 Wheat. R., 431. 



292 LEGISLATIVE PO WEES. — SPECIAL. 

the amount of assessment, and the mode of col- 
lection, with its universality and supremacy, must 
be a very formidable instrument in the hands of 
the government, for regulating and controlling 
all the subordinate agencies in the State. Mr. 
George Mason warned the Virginians, before 
the Constitution was adopted, that " this power, 
being unconfined and without any kind of con- 
trol, must carry every thing before it," and was 
" calculated to annihilate totally the State gov- 
ernments." The United States, however, have 
never made use of their unlimited and uncon- 
trollable power in this respect, to control or em- 
barrass the operations of the State governments, 
even when those operations were unconstitu- 
tional, and intended directly to counteract their 
own proceedings. But some of the States have 
instructed them by examples, which might be 
followed as precedents, of the manner in which 
it might be rendered very efficient. Witness the 
attempts to drive the United-States Bank and 
the United-States Loan beyond their respective 
jurisdictions.^ 

§ 307. The words of the second and third lines 
of the section, " to pay the debts, and provide 
for the common defence and general welfare, of 
the United States," demand more special atten- 
tion. The principle avocation of the State-rights 

1 See McCulloch v. Maryland, 4 Wheat. E. ; Osborn, &c., v. The Bank 
of the United States, 9 Wheat ; Weston, &c., v. City Council of Charles- 
ton, 2 Peter's Eep. 



LEGISLATIVE rOWERS.— SPECIAL. 293 

politicians has always been to construe away the 
provisions of the Constitution; and they have 
not been more sorely oppressed by any of them 
than by this. Consequently, their labors have 
been most abundantly bestowed here. The dis- 
cussions that have arisen out of this disposition 
of the party have usually been of the character 
which military men would call a war of posts. 
The Constitution, at its origin, found the State 
governments, whether by right or by wrong, in 
the actual possession of the principal part of the 
field, and very little disj^osed to give up any 
portion of it.^ 

§ 308. Scarcely any important law for national 
jKirposes, before the rebellion of 1860, was passed 
without encountering objections grounded on the 
assumed deficiency of power in the government. 
The discussions have generally been so man- 
aged as to make the result settle, as little as 
possible, in favor of the powers of the Constitu- 
tion. The slaveholding interest, always in favor 
of State sovereignty, under the name of State 
rights, gave the tone to the government, and 
usually controlled its action. Under these cir- 
cumstances, a willing ear was always lent to any 
plans for limiting or curtailing the power of the 

1 The people had been informed by the Convention, in their Address 
to Congress, that it was impracticable to secure an " independent sover- 
eignty to each [of the Sta,tes], and yet provide for the safety of all;" 
and that it was " difficult to draw with precision the line between those 
rights which must be surrendered, and those which may be reserved." 
But the State legislatures, as such, had not been asked to ratify the Con- 
stitution, and had not done it. 



294 LEGISLATIVE POWERS. — SPECIAL. 

general government, or to any objections or ob- 
structions likely to prevent or embarrass the 
development or aggrandizement of their author- 
ity. It was an up-hill job to sustain the right 
of the nation to do any thing. The supporters 
of the government, therefore, in all such con- 
tests, found it expedient to expose as little front 
as possible, and plant their engines of defence 
jus.t so as to cover the point of immediate at- 
tack. 

§ 309. The first statute made under the Con- 
stitution, respecting certain oaths, was defended 
solely on the ground, that the legislation was 
necessary for executing a particular provision of 
the Constitution,^ notwithstanding the legislative 
power was not specially invoked. The national 
Bank was sustained mainly on the narrow ground 
of the fitness and convenience of its agency in 
collecting and disbursing the finances. But Mr. 
Lawrence, of 'New York, said, in debate, in the 
House of Kepresentatives, February, 1791, " The 
princijples of the government, and the ends of 
the Constitution, were expi'essed in its preamble : 
It is established for the common defence and 
general welfare. The body of that instrument 
contained provisio7is the best adapted to the in- 
tention of those principles, and the attainment 
of those ends. To these ends, principles, and 
provisions. Congress was to have a constant eye ; 
and then, by the sweeping clause, they were 

1 Article VI., section 3. 



LEGISLATIVE POWERS. — SPECIAL. 295 

vested with the powers to carry the ends into 
execution." 

§ 310. In the debate in the House of Repre- 
sentatives, on the 3d of February, 1866, on the 
Freedman's Bureau Bill, Mr. Hubbard, of Con- 
necticut, said " There was authority in the Con- 
stitution for the passage of this Bill; for to 
Congress was given power to j^ass all proper 
laws to carry out the provisions of the Constitu- 
tion, which include the public welfare." But 
though the government have always done, and 
continue to do, many things which could not be 
justified on the narrow ground of any special 
provision among the duties of Congress, this 
broad, constitutional platform has never been 
boldly assumed and consistently maintained by 
any department of the government, on any sub- 
ject. There probably has not been any time 
when it could have been done, till now. The 
windy warfare of posts resulted in open rebel- 
lion, and that has resulted in the plenary estab- 
lishment of the national supremacy; and the 
Constitution, in its original purity, may now be 
safely followed and successfully defended.^ 

§ 311. The words now to be considered are a 
part of those special provisions relating to the 
powers of Congress, adapted to the attainment 
of the avowed objects aiid ends of the Consti- 
tution. The different opinions that have been 
advanced, as to their force and effect, may be 
classed under four heads: 1st, Whether they 

1 See motto on the titlepage. 



296 LEGISLATIVE PO WEES. — SPECIAL. 

really mean any thing, — that is, whether they 
confer any power on Congress, for any purpose ; 
2d, Whether they confer a power to a]3propriate 
the funds arising from taxation to the objects 
named; 3d, Whether they are used only as a qual- 
ification of the taxing power of Congress, limit- 
ing the purposes for which taxes may be laid; 
4:th, Whether they specially confer on Congress 
the power to " pay the debts, and provide for the 
common defence and general welfare." 

§ 312. On the first head, viz., whether they 
confer any power for any purpose, Mr. Madison, 
in his " Report of the Virginia Resolutions," 
states the doctrine thus: " Congress is author- 
ized to provide money for the common defence 
and general welfare. . . . Subjoined to this au- 
thority is an enumeration of the cases to which 
their powers shall extend. Money cannot be 
applied to the general welfare, Otherwise than by 
an application of it to some particular measure 
co nducive to the general welfare. Whenever, 
therefore, money has been raised by the general 
authority, and is to be applied to a particular 
measure, a question arises, whether that particu- 
lar measure be within the enumerated powers 
vested in Congress. If it be, the money re- 
quisite for it may be applied to it. If it be not, 
no such application can be made." The same 
views are often reiterated in his veto messages 
and other writings. 

§ 313. The effect of them is, that the words 



LEGISLATIVE POWERS. — SPECIAL. 297 

in question, " to pay the debts, and provide for 
the common defence and general welfare," have 
no meaning at all. They give Congress no 
j)ow^er to do any thing, and are of no use, and of 
course ought not to be in the Constitution. The 
" subjoined . . . eninneration of the cases to 
w^hicli their powers shall extend" are the real 
and only " specified j)owers," — the actual " enu- 
merated 2^owers " of the government, for which 
alone money can be raised and used, — notwith- 
standing all that he and others have said about 
the 8th section being such an enumeration. 
Whenever money " is to be applied to a particu- 
lar measure, a question arises," not whether it 
be " to pay the debts, or provide for the common 
defence or general welfare ; " but " whether the 
particular measure [for either of the cases] be 
within the [8th section? JSTo; but whether it 
be within the ^subjoined'] enumerated powers 
vested in Congress." 

§ 314. Let the principle be explained and 
tested, by applying it to practice. Suppose the 
" particular measure " to be a bill to pay f 100,000 
to the captors of J. D. The question of consti- 
tutionality is raised, as usual, on all bills. The 
question is not, whether it is a debt which the 
government is bound to pay; but whether there 
is, within the last sixteen items of the 8th section, 
a specific authority granted to Congress to pass 
this " particular measure," paying $100,000 for 
the capture of J. D. Or suppose the " particu- 



298 LEGISLATIVE PO WEES. — SPECIAL. 

lar measure " to be a bill for sustaining the West- 
Point Academy. The question is not, whether 
it is properly adapted " to provide for the com- 
mon defence ; " but whether there is, in the last 
sixteen items of the 8th section, any specific 
authority granted to Congress to defray the ex- 
pense of sending J. D., R. E. L., J. E. J., and 
other rebels, to school, and teaching them mathe- 
matics and military tactics. Or, again, suppose 
the " particular measure " to be the relief of the 
French refugees from the St. Domingo massacre. 
The question is not, whether it would redound to 
the credit and " general welfare " of the United 
States to feed these starving Frenchmen ; but 
whether there is any specific grant of power to 
Congress to adopt this " particular measure," 
and purchase hog and hominy to give away to 
absconding aliens. 

§ 315. To the same purport, Mr. Monroe, in 
his veto of the Cumberland Road Bill, says, " If 
we examine the specific grants of power, we do 
not find it among them; nor is it incidental to 
any power which has been specifically granted." 
In his exposition, afterwards, he states the doc- 
trine thus: "The national government . . . has" 
no right to expend money, except in the per- 
formance of acts authorized by the otJier specific 
grants, according to a strict construction of 
their poweirs; that this grant, in neither of its 
branches, gives to Congress discretionary powers 
of any kind; but it is a mere instrument in its 



LEGISLATIVE TOWERS. — SPECIAL. 299 

hands, to cany into effect the powers contained 
in the otlier grants." It is curious to observe in 
all this how studiously — I had almost written 
insidiously — these gentlemen assume, and take 
it for granted, in a solemn argument as to the 
extent of the powers of a great national govern- 
ment for half a continent, that all its powers 
must necessarily be specific and particular or 
incidental; that is, circumstantial, less than par- 
ticular, more minute. 

§ 316. Mr. Madison demands an authority for 
the " particular measure " in question. Mr. Mon- 
roe cannot find the " specific grant of power." 
According to these gentlemen, the specified and 
enumerated powders are but the eighteen items 
of the 8th section; and they here throw away a 
part of these, on the ground that they are gene- 
ral, and not particular or specific. Mr. Madison 
says no "particular measure" can be adopted 
under the authority to " provide for the common 
defence and general welfare ; " but we must look 
to the " subjoined . . . enumeration " for the 
power to pass the " particular measure." Mr. 
Monroe says this grant is of no validity, unless 
the performance of the particular acts in ques- 
tion are " authorized by the other specific grants." 
Here, then, the narrow ground of special, par- 
ticular, and enumerated powers, " according to a 
strict construction," is rendered still narrower by 
casting away a part of the specified and enumer- 
ated powers themselves. By what authority is 



300 LEGISLATIVE POWERS. — SPECIAL. 

this done? Have not the people of the United 
States a right to delegate what powers they 
please, general or special, to their own govern- 
ment? and who has a right to say that a part of 
them mean nothing? 

§ 317. In the first sentence of the Constitu- 
tion, the people say they organize and establish 
the government for the purpose, " in order," to do 
certain things. This is general, it is said, and 
goes for nothing, because no special or particular 
powers are given to any body in particular to 
carry them out. Very well, say the people, we 
will have proper departments and officers to ad- 
minister the government, and perform its duties. 
So, in the next sentence, they say, " All legisla- 
tive powers herein granted shall be vested in a 
Congress." As all the duties of the government 
require legislation, the assignment of legislative 
power would seem to provide for that portion of 
the governmental duties. But no, say the objec- 
tors, this confers no special power on Congress.- 
The purposes mentioned in the first sentence are 
general, and thus practically void ; and this, so far 
as it refers back to that, is void also: and Con- 
gress can do nothing by virtue of either, for 
want of a special and particular authority. The 
clause means by " herein granted " the same as 
if it had been "hereinafter granted;" there being 
none granted before, special or particular. Very 
well, say the people once more, we will try 
again. "We will this time say nothing about 



LEGISLATIVE POWERS. — SPECIAL. 301 

the general purposes and duties of the whole 
government, and nothing about that portion of 
them which requires legislation j but we will go 
directly to Congress, and say what they shall do. 
" Congress shall have power " to do as follows, 
&c. But, says Mr. Madison, this is of no use : it 
is only a general authority, and authorizes no 
"particular measure." And Mr. Monroe says, 
" if we examine the specific grants of power, we 
do not find it [this particular measure] among 
them." This course of dealing would destroy 
any Constitution that was less comprehensive 
than all the statutes that might be called for to 
the end of time. 

§ 318. "General" and "particular" are relative 
terms. Every power is general in respect to 
every particular which it includes and author- 
izes; and every power is particular in respect to 
the purpose which it is intended to effect, and 
for wiiich it is authorized. Union, justice, tran- 
quillity, defence, and liberty are particular and 
specific objects, in reference to the " general wel- 
fare ; " and each of them is general in reference 
to all the particular acts by which they may 
respectively be promoted. The common defence 
is a general power in reference to the army, 
navy, militia, and every thing else that can be 
made conducive to it; and the army, navy, and 
militia powers are, in turn, themselves general, 
in reference to all the particulars involved in 
them. The commercial power is special and 



302 LEGISLATIVE POWERS. — SPECIAL. 

specific in relation to the great ulterior pur- 
poses for which the government was established ; 
and general in relation to bankruptcy, currency, 
post-office, &c., particularly mentioned in the 
Constitution; and also in respect to ships and 
waggons, passengers and freight, steamboats and 
locomotives, canals and railroads, and many other 
things not named, but equally involved, in it. 
The Constitution furnishes no apology for say- 
ing that general powers authorize no " particular 
measure ; " or that they do not authorize any and 
every measure properly conducive to their ac- 
complishment, and not otherwise prohibited. On 
the contrary theory of construction, what be- 
comes of the power of taxation itself? This is 
general, and almost unlimited. Is it therefore 
void, because it is not afterwards reiterated in 
terms more specific, precise, and particular in the 
subjoined enumeration of the cases to which it 
shall extend ? l^o such subjoined enumeration 
exists ; and if the power " to pay the debts, and 
provide for the common defence and general 
welfare," would be void without it, the whole 
power of taxation is necessarily void also; and 
all taxes laid by the general government for 
preserving their own existence, or for any other 
special purpose whatever, are absolutely uncon- 
stitutional, because that particular measure is 
not enumerated. There is no end to the absurdi- 
ties into which gentlemen lead themselves, by 
their attempts to prove by the Constitution 



LEGISLATIVE POWERS. — SPECIAL. 30S 

that we have no government for the United 
States. 

§ 319. Second, The second head of inqmry in 
regard to the words " to pay the debts, and 
provide for the common defence and general 
welfare," is whether they confer a power to a])- 
pi'opriate the fnnds arising from taxation to the 
objects named. Mr. Monroe says, in his exposi- 
tion above cited, " On further reflection and ob- 
servation, my mind has undergone a change;" 
and he proceeds to develop his new views as 
follows : " The grant consists of a twofold power, 
the first to raise, and the second to appropriate, 
the public money ; and the terms used in both 
instances are general and unqualified. . . . The 
grant to raise money gives a power over every 
subject, from which revenue may be drawn. . . . 
The second branch of this power, that which 
authorizes the appropriation of the money thus 
raised, is not less general and unqualified than 
the power to raise it. More comprehensive 
terms than ^ to pay the debts, and provide for 
the common defence and general welfare,' could 
not have been used," — "comprising^ every 
object and act within the purview of the legis- 
lative trust." 

§ 320. This would seem to be sufiiciently broad 
for aW practical pur^joses ; but it is rendered 
much more so by another very correct principle, 
which he applies to the subject in the same con- 

1 As JMr. Madison also says, Veto, March 3, 1817. 



304 LEGISLATIVE POWERS. — SPECIAL. 

nection. He says, " It ought particularly to be 
recollected, that, to whatever extent any specific 
power may be carried, the right of jurisdiction 
goes with it, pursuing it through all its inci- 
dents. . . . Each of the other grants is limited 
by the nature of the grant itself. This, by the 
nature of the government only." Congress, 
then, may appropriate money to any object 
within the range of legitimate legislation, and 
take jurisdiction of the subject-matter, " through 
all its incidents," so as to make it effectual for 
the uses intended, and regulate, protect, and 
perpetuate it therein. They may, of course, 
make all laws necessary and proper for these 
purposes. Mr. Monroe is very careful, in the 
same connection, to repudiate the idea, " that the 
words "^ to provide for the common defence and 
general welfare,' . . . form an original grant, 
with unlimited power, superseding every other 
grant; " which it is presumed nobody ever held, 
in those terms or in any other, coming nearer 
to it than his own most mature " reflection and 
observation " have led him to adopt, and develop 
in the broad and comprehensive language above 
cited. 

§ 321. Third, The idea under the third head is, 
that the words in question are used in the Con- 
stitution by way of qualification of the taxing 
power, limiting it to the three purposes thus ex- 
pressed. Mr. Jefferson states the doctrine thus : ^ 

1 Opinion on the Bank, February, 1791. 



LEGISLATIVE POWERS. — SPECIAL. 305 

" To lay taxes to provide for the general welfare 
of the United States, — that is to say, ^ to lay 
taxes for the 'purpose of providing for the gene- 
ral welfare ; ' for the laying of taxes is the power ^ 
and the general welfare the purpose for which 
the power is to be exercised. Congress are not 
to lay taxes ad libitum, for any purpose tliey 
please; but only to j^ay the debts, or provide for 
the general welfare, of the Union. In like man- 
ner, they are not to do any thing they please, to 
provide for the general welfare, but only to lay 
taxes for that purpose." 

§ 322. According to this interpretation, then, 
Congress have the powee to provide for the gen- 
eral welfare, in this one way at least, to wit, by 
laying and collecting taxes for that express pur- 
pose. Then it is a "^ower " vested by the Consti- 
tution in this department of the government. If 
this be so, then Congress have, by another pro- 
vision of the same section, express power " to 
make all laws . . . necessary and proper for car- 
rying it into execution." "Whatever Congress 
may do under this or any other power, they 
must exercise jurisdiction over ; see that the 
money devoted to it is properly applied, and 
made effectual for the jDurpose; and then protect 
and defend it in its future administration. What 
this power is, Mr. Jefferson instructs us, in an- 
other part of the same opinion. He says, that, 
considered as a " distinct and independent " 
power, it would be a "power to do whatever 

20 



306 LEGISLATIVE POWERS. — SPECIAL. 

would be for the good of the United States ; and 
as they [Congress] would be the sole judges of 
the good or evil, it would also be a power to do 
whatever evil they pleased." How the power is 
diflPerent from this, if considered only as " de- 
scribing the purpose " or object of taxation, he 
does not explain. 

§ 323. He supposes the words in question are 
a limitation of the preceding power of taxation. 
"Congress," he says, "cannot lay taxes ad libitum, 
but only to pay debts," &c. All government is 
a trust, and can be rightfully exercised only for 
the purposes, and within the limits, of the funda- 
mental law for the public good. The purposes 
and objects of our government are stated in the 
Constitution; and neither the public funds nor 
the public credit can be legally applied to any 
others. These limit the exercise of all the 
powers of the government, and this among the 
rest. These purposes are union, justice, tran- 
quillity, defence, welfare, and liberty; and they 
are all included in the " common defence and 
general welfare," or rather in the " general wel- 
fare " alone. Any thing in the nature of a re- 
striction of these must certainly be expressed in 
other and narrower terms. But the terms used 
in the 8th section are, "to pay the debts, and 
provide for the common defence and general 
welfare, of the United States; "and are as broad 
as the purposes of .the Constitution itself, and 
co-extensive with them. So far are they from 



LEGISLATIVE POWERS. — SPECIAL. 307 

forming a restriction on the power of lev^nng 
and appropriating the public money, that they 
actually make the power, by express grant, co- 
extensive with all possible purposes of the gov- 
ernment, instead of compelling them to rely on 
the implied power, which alone would have ex- 
isted without them. 

§ 324:. These gentlemen all assume that the 
particular or special gi*ants are all the powers 
the government have, and thence infer that the 
general grants are void or unmeaning. But they 
forget that the converse of the proposition is 
equally true; and that, if others choose to assume 
that the general grants are valid, then it will fol- 
low that the sjoecial ones are useless and void. 
So the argument is balanced, and good for 
nothing either way. Either their rule is false, 
or their application of it is erroneous. If the 
general and special powers of the Constitution 
are not incompatible, then their rule is not well 
applied. The foregoing theories are all effectu- 
ally answered among themselves. Mr. Jefferson 
and Mr. Monroe both agree that these words 
mean something, and that Mr. Madison's theory 
to the contrary is untenable. Mr. Madison and 
Mr. Monroe agree that Mr. Jefferson's is so ; 
and Mr. Jefferson and Mr. Madison agree that 
Mr. Monroe's is also. So there is a decided ma- 
jority against each; and the majority in each 
case is undoubtedly right. 

§ 325. Mr. Madison, in his report above cited, 



308 LEGISLATIVE POWERS. — SPECIAL. 

gives the result thus: " Now whether the phrases 
m question be construed to authorize every mea- 
sure relating to the common defence and general 
welfare, as considered by some, or every measure 
only in which there might be an application of 
money, as suggested by the caution of others, 
the effect must substantially be the same, in 
destroying the import and force of the particular 
enumeration of powers which follows these gen- 
eral phrases in the Constitution : for it is evident, 
that there is not a single power whatever, which 
may not have some reference to the common 
defence or the general welfare; nor a power of 
any magnitude, which, in its exercise, does not 
involve or admit an application of money. The 
government, therefore, which possesses power in 
either one or other of these extents, is a govern- 
ment without limitations, formed by a particular 
enumeration of powers; and, consequently, the 
meaning and effect of this particular enumeration 
is destroyed by the exposition given to these 
general phrases." 

§ 326. In regard to the practice of the gov- 
ernment. Judge Story very justly remarks,^ that 
" appropriations have never been limited by Con- 
gress to cases falling within the specific powers 
enumerated in the Constitution, whether those 
powers be construed in their broad or their 
narrow sense." But though neither of the 
foregoing theories has commanded the assent 

1 2 Com., 457. 



LEGISLATIVE POWERS. — SPECIAL. 309 

of all who wished them success, nor proved suf- 
ficient to Imiit the legislation of the country 
within the narrow bounds they would indicate, 
yet they have been exceedingly useful to the 
slaveholding politicians, as a convenient make- 
weight, to divide their opponents, and defeat 
measures particularly uncongenial to their wishes, 
when it was found impossible to sustain their 
position on the merits of the question. 



CHAPTEK XXI. 

LEGISLATIVE POWERS. — SPECIAL. 
The Financial Powers. 

§ 327. Fourth, The fourth and only remaimng 
head of inquiry is, whether the words, "to pay 
the debts, and provide for the common defence 
and general welfare, of the United States," 
actually confer the power thereby expressed, ac- 
cording to their plain, obvious, and legal mean- 
ing. The original proposition for putting these 
words into the Constitution was made by Mr. 
Sherman, of Connecticut.^ He thought it neces- 
sary to connect with the taxing clause, " an ex- 
press provision for the object of the old debts," 
&c. ; and moved to add to it, " for the payment 
of said debts, and for the defraying the expenses 
that shall be incurred for the common defence 
and general welfare." This was plainly an au- 
thority to pay — in the language of Mr. Sher- 
man, " an express provision for " — the old debts, 

1 Not, however, till a determination had been manifested in tlie Con- 
vention to provide in some form for the actual payment of the Revolu- 
tionary debt. 
[310] 



LEGISLATIVE POWERS. — SPECIAL. 311 

and an equally exjDress provision for new ones. 
Xo man had then donbted that Congress could 
incur debts and expenses, as the old government 
had done, for the public good, under the name 
of the " common defence and general welfare." 
But, says Mr. Madison,^ " The proposition, as 
being unnecessary, was disagreed to." 
' § 328. Why and how was this authority un- 
necessary? JSTot, certainly, because the object 
was disapproved, but because it was already pro- 
vided for. In regard to the old debts, this was 
done by the sixth Article, which had just been 
adopted, recognizing the validity of those debts. 
In regard to new debts, this w^as done by the prin- 
ciple, that whoever may lawfully contract a debt 
is legally bound to pay it. Again, it was done, 
in regard to both, by the principle, that the debts 
were against the United States, and any govern- 
ment of the United States would be bound to 
pay them. It did not authorize the contraction 
of any new liabilities, or any debts or expenses 
for any new objects, but only to j^ay " expenses " 
lawfully incurred under other existing provi- 
sions. So the motion failed for this timej but 
Mr. Sherman was not satisfied. 

§ 329. Three days afterwards, he obtained the 
appointment of a large committee, of which he 
was a member, to which this and several other 
subjects were committed. That committee re-* 
ported the clause in the shape it now stands in 

1 3 Madison Papers, 1427. 



312 LEGISLATIVE POWERS. — SPECIAL. 

the Constitution, without the last line, on the rule 
of uniformity, which was subsequently added. 
This report was now adopted unanimously, 
though before it obtained but the single vote of 
Mr. Sherman's own State, which required the ac- 
quiescence of only a single man besides himself. 
Before, it was rejected because it was unneces- 
sary. What is the difference in the two forms*? 
In the original form, it simply gave authority for 
paying two different classes of debts, the old and 
the new. It was an authority to jyay and dis- 
cliarge merely; to perform an admitted duty. 
This was unnecessary, because what was an ad- 
mitted duty was to be performed at any rate, 
and no new provision could increase the authority 
or the obligation. 

§ 330. In the new or present form, it is not 
only an authority to ^ay and discharge all debts, 
old or new indiscriminately, but an additional 
authority, not to ])ay, but to "^^rov^'^e for the 
common defence and general welfare." In this 
shape it passed the Convention unanimously. 
Why? They had just decided that a sj)ecial 
power to pay debts was not necessary. They 
now decide that a power " to pay the debts, and 
provide for the common defence and general 
welfare," is necessary. The difference between 
the two propositions has been pointed out. The 
difference of judgment npon them must be in 
consequence of that difference, because there is 
no other. And both decisions were right, — the 



LEGISLATIVE POWERS. — SPECIAL. 313 

first for the reasons above given; and the second, 
because the great purposes and objects of the 
government, disclosed by those words, had not 
till then found a place in the Constitution. 

§ 331. It is to be recollected, that the intro- 
ductory sentence, the enacting clause, had not 
then been formed. The only preface it then had 
was no part of the instrument, but a simple an- 
nunciation from Avithout of " the following Con- 
stitution," but disclosing none of its purposes 
or objects. The other parts of the Constitution 
then were, and still are, equally reticent in this 
respect. The ultimate and final objects of this 
government, and of all government, with the 
power or means of obtaining them, first find their 
place in the Constitution here, and are afterwards 
copied, with explanatory enlargement, into the 
enacting clause. Their great importance ren- 
dered their insertion necessary, and this neces- 
sity commanded the unanimous assent of the 
Convention; and they were afterwards inserted 
in the first sentence, for the same reason, and 
with the same unanimous consent. As this rea- 
son is ample and sufficient, and no better one is 
wanted, it may well be presumed that this was 
the true reason for which the people also ratified 
and adopted it. 

§ 332. This committee of Mr. Sherman's was 
a sort of omnibus committee, and what was 
called a grand committee, of one from each 
State, appointed on the last day of August. It 



314 LEGISLATIVE POWERS. — SPECIAL. 

was a large and able committee, of which him- 
self, Mr. King, Mr. G. Morris, Mr. Madison, &c., 
were members, and Mr. Brearley was chair- 
man. Their duty was to report upon ^^ such parts 
of the Constitution as have been postponed, and 
such parts of reports as have not been acted on." 
On the 23d, the first clause of section 8 had been 
left in this form: " The legislature shall fulfil 
the engagements and discharge the debts of the 
United States, and shall have the power to lay 
and collect taxes, duties, imposts, and excises ; " 
and, on the 25th, his addition " for the payment 
of said debts, and for the defraying the expenses 
that shall be incurred for the common defence 
and general welfare," had been negatived ; which, 
in his view, left the clause unfinished. Besides, 
on the 22d, the Committee of Detail had made 
an additional report, a part of which was in these 
words, and had "not been acted on," viz., "And 
to provide, as may become necessary, from time 
to time, for the well-managing and securing the 
common property and general interests and wel- 
fare of the United States, in such manner as 
shall not interfere with the government of indi- 
vidual States in matters which respect only their 
internal policy, and for which their individual 
authority may be competent." This was to be 
added to one of the last clauses of section 8 ; 
and. Judge Story says,^ if it had been adopted, 
" would have created a general power to this 

1 2 Com., 394. 



LEGISLATIVE POWERS. — SPECIAL. 315 

eflfect." Because it had not been acted on, and 
the first clause was considered unfinished, this 
committee were authorized to report, and did 
report, a new draft, which was adopted unani- 
mously, as follows : " To lay and collect taxes, 
duties, imposts, and excises; to pay the debts, 
and provide for the common defence and general 
welfare, of the United States." 

§ 333. To pay debts, and provide for the com- 
mon defence and general welfare, may be called 
independent, or auxiliary, or ancillary powers; 
but they are certainly powers, and powers to be 
exercised. Debts must be paid, and defence and 
welfare provided for, whether taxes are laid 
and collected or not. Else what is the use of 
borrowed money, or the proceeds of public lands, 
or any other sources of revenue? So the laws 
must be executed, rebellions suppressed, and in- 
vasions repelled. These things may be done by 
calling out the militia; and they may be done 
by any other constitutional means as well, and 
perhaps better. " The truth is ... it was 
deemed best to append the power to pay the 
public debts to the power to lay taxes; and then 
to add other terms, broad enough to embrace all 
the other purposes contemj^lated by the Consti- 
tution. Among these, none were more appro- 
priate than the words ^ common defence and 
general welfare,' found in the Articles of Con- 
federation, and subsequently, with marked em- 
phasis, introduced into the introductory clause 



316 LEGISLATIVE POWEES. — SPECIAL. 

of the Constitution. To this course no opposi- 
tion was made, because it satisfied those who 
wished to provide positively for the pubhc debts, 
and those who wished to have the power of 
taxation co-extensive with all constitutional ob- 
jects and powers. In other words, it conformed 
to the spirit of that resolution of the Convention 
which authorized Congress to legislate, in all 
cases, for the general interests of the Union.' " ^ 
§ 334. Another historical circumstance, of 
some importance in this connection, is mentioned 
by Judge Story : ^ " The fact that, in the revised 
draft of the Constitution in the Convention, 
the clause [to pay the debts, and provide for the 
common defence and general welfare, of the 
United States] was separated from the preced- 
ing [to lay taxes, duties, imposts, and excises], 
exactly in the same manner as every succeeding 
clause was, viz., by a semicolon ^ and a break in 
the paragraph ;" constituting them distinct and 
separate provisions, as completely as the two 
next, " to borrow money " and " to regulate com- 
merce," were by the same means. In this form 
it was finally adopted by the Convention, and 
not afterwards altered otherwise than by the 
addition of the imiformity clause. This addition 
was made in the Convention, unanimously and 
without debate; from which we may safely infer 

1 2 Story's Com., 395. 2 2 Com. 371. 

3 This punctuation has since been altered, by substituting the colon for 
the semicolon, — probably by the same authority that added the numerals 
to the different paragraphs. 



LEGISLATIVE POWERS. — SPECIAL. 317 

that no alteration in the construction or effect 
of the preceding clauses was intended or sus- 
pected. 

§ 335. From this historical resume of the sub- 
ject, it is manifest, that, so far as the Convention 
is concerned, the words " to pay the debts " were 
introduced for the precise and sole jjurpose of 
adding a distinct and independent power to pay 
the old Revolutionary debts. " Defence " and 
" welfare " being introduced in the same manner, 
and following in the same category, must be 
understood as adding other distinct and inde- 
pendent powers, as they could not, in that 
connection, answer any other purpose. This 
conclusion is further rendered certain by the 
fact that these words, as the Convention adopted 
them, on the report of the Committee of Re- 
vision, constituted a separate and distinct clause 
by itself, — as much so as the power " to borrow 
money," or any other separate and distinct clause 
in the section. 

§ 336. What "the people of the United States" 
meant by it, is, however, the only question; and 
this must be ascertained exclusively from the 
words they have used, for they have given us no 
other means. The words are there, and are in- 
telligible and purtenant, and must be understood 
to mean something. We are not at liberty to 
assume, or even to argue, that they can have 
been put there for no purpose. This would 
contravene all known rules of legal interpreta- 



318 LEGISLATIVE POWERS.— SPECIAL. 

tion.^ That idea must therefore be dismissed. 
The only remaining ones are, — that " to pay the 
debts, and provide for the common defence and 
general welfare," constitute distinct and indepen- 
dent powers of Congress ; or that they appertain 
to, and qualify the preceding powder of, taxation. 
On these two theories, the following suggestions 
are made. 

§ 337. The words are appropriate, important, 
and national in their character; and indicate 
such powers as belong to every independent 
goverimient on earth. There is therefore no 
reason, in the nature of the jDOwers, why they 
should not be conferred, and the words are apt 
and appropriate for conferring them ; particularly 
when considered in connection with the same 
words repeated in the enacting clause, to ai;- 
nounce the fundamental purposes for which the 
government was established. 

§ 338. The same words used to express the 
avowed purposes for which the government was 
instituted, necessarily devolve these duties upon 
their legislative capacity, Avhei^ver that is de- 
posited. All the legislative power granted to 
the government is vested in Congress. So that 
Congress must necessarily have this power, in- 
dependent of this special grant; which is only 
another example of the pleonasms and repeti- 

1 " It is a most unjustifiable latitude of interpretation to deny effect to 
any clause, if it is sensible in the language in which it is expressed, and 
in the place in which it stands." — 2 Story's Com., 380. 



LEGISLATIVE POWERS.— SPECIAL. 319 

tions which so much abound in our Constitu- 
tion. 

§ 339. The power of the " common defence " 
is once more devolved upon Congress by Article 
IV., section 4. " The United States . . . shall 
protect each of them [the States] against inva- 
sion." The United States is the government. 
The government, as fer as respects legislation, is 
Congress. " Each of the States," in conjunction, 
make all the States. So Congress must provide 
for the common defence, independent both of the 
introductory clause and of the 8th section. 

§ 340. It is certain, universally admitted, and 
never has been doubted by anybody, that Con- 
gress has in fact, and has always had, by means 
of a constitutional grant, a power " to pay the 
debts, and provide for the common defence . . . 
of the United States," and has always exercised 
it, without any reference whatever to the taxing 
power, directly or indirectly; and the power to 
provide for the " general welfare " is conferred 
at the same time, in the same connection, and in 
the same words, which must there mean the 
same thing, according to a well-known principle 
of law. If Congress may " provide for the com- 
mon defence," they may also provide for the 
" general welfare ; " for they are united by the 
copulative conjunction, and the same verb, " pro- 
vide," applies to both. 

§ 341. The payment of the public debt has 
never been considered as limited to the revenue 



320 LEGISLATIVE PO WEES. — SPECIAL. 

arising from taxation in any form, or so restricted 
in practice. The old Revolutionary debt was 
expressly provided for from several other re- 
sources; and all other debts are constantly paid, 
not only without reference to that revenue, but 
even when that resource is, as it has sometimes 
been, temjDorarily cut off. 

§ 342. The common defence has never been 
provided for, solely, by the payment of money, 
and never can be; but when money has been 
applied to it, the appropriation never had refer- 
ence to the revenue from taxation. In time of 
war, such a restriction would be ruinous. At the 
commencement of the late rebellion, the Treasury 
was empty; and a restriction of the means of 
defence to the acquisitions from taxation would 
have destroyed the country. 

§ 343. The same is true in regard to the gen- 
eral welfare, so far as it has been practised upon 
at all, — in appropriations for the improvement 
of roads, rivers, and internal navigation gene- 
rally. Even in the famous Bonus Bill, for cre- 
ating a fund for internal improvement, which 
passed both Houses of Congress, no proceeds 
of taxation were proposed to be used. So 
that, practically, neither of these powers have 
ever been held to be at all appurtenant to, or 
dependent upon, the preceding power of taxa- 
tion. 

§ 344. But, lastly, it is of no consequence, and 
really makes no difference, as to the magnitude 



LEGISLATIVE POWERS. — SPECIAL. 321 

or extent of either of these powers, whether 
they are considered as direct, substantive jDowers, 
or only as incidental and appurtenant to the tax- 
ing power. For if Congress may appropriate 
the public money of any sort, in either way, to 
these purposes, they must use the power so as 
to make it effectual for the purj^ose in view j and 
of course they may bring to their aid any other 
means within the range of legitimate legislation.^ 
For, if the power exists in any form, it is a 
"power vested by the Constitution," and Con- 
gress have an express authority " to make all 
laws which shall be necessary and proper for 
carrying into execution" all such powers. 

§ 345. Mr. Madison takes substantially the 
same view in a passage already cited ;^ and Mr. 
Justice Story says,^ " The controversy is virtually 
at an end, if it is once admitted that the words, 
"^ to provide for the common defetice and general 
welfare,' are a part and qualification of the power 
to lay taxes ; for then Congress has certainly a 
right to appropriate money to any purposes, or 
in any manner, conducive to those ends." The 
whole stress of the argument is, therefore, to 
establish, that the words, " to provide for the 
common defence and general welfare," do not 

1 " The American people thought it a necessary power, and they con- 
ferred it for their own benefit. Being so conferred, it carries with it all 
those incidental powers which are necessary to its complete and effectual 
exercise." — Mr. Chief Justice Marshall, in speaking for the whole Court, 
in Cohens v. Virginia, 6 Wheat. R., 428. 

2 Ante, p. 308. 3 2 Com., 441. 

21 



322 LEGISLATIVE POWERS. — SPECIAL. 

form an independent power, nor any qualification 
of the power to lay taxes. And the argument 
is, that they are " mere general terms, explained 
and limited by the subjoined specifications." 

§ 346. All the powers granted directly to Con- 
gress by name, in distinction from those which 
necessarily devolve upon them as the depository 
of " all the legislative powers " required for the 
performance of the great purposes and duties 
for which the government was ordained, have 
been called ^^ special 'pon^ers^'^ sometimes ^'^enu- 
merated powers,^'' though they are not enumerated 
in the Constitution; because they are direct and 
exjDress grants to Congress, without reference to 
their particular character, whether strictly legis- 
lative or otherwise. The power to borrow 
money, to call forth the militia, to admit new 
States, to govern the territories, &c., are not 
exclusively legislative in their nature, and might 
have been otherwise provided for. But they 
are all particular and specific powers of Con- 
gress, because they are specially and expressly 
granted to them, and do not depend upon any 
definition of the legislative power. Some of 
them are general, or in " general terms j " others 
more particular; and a few minute, as the power 
to alter the time of their own meeting. But 
none are so general as to be universal, and none 
so particular as to be indivisible. The most 
minute is general in respect to all the particular 
acts that might be done under it; and the most 



LEGISLATIVE POWERS. — SPECIAL. 323 

general is particular, in respect to any thing 
more general that would include it with others. 

§ 347. But the argument is predicated on the 
idea, that general and special powers are ab- 
solutely incompatible. If genei'al powers are 
granted, including and absorbing any of the 
special powers, then the special powers are nug- 
atory and void. If the special powers are valid, 
they must be all the powers, though the Consti- 
tution does not say so ; and the general terms are 
void, and mean nothing. In the case of our own 
Constitution, and every other written one that 
ever was made, the people have attempted to 
grant both; and as one or the other, according 
to the argument, must be void, every man may 
take his choice. If he prefers an efficient 
national government, the general jtowers are 
adequate and sufficient. If he prefers local 
governments, or none at all, then he will, with 
Mr. Jeiferson, "lace them [the national govern- 
ment] up strictly within the enumerated powers," 
always rejecting from the list those "general 
terms " which confer more than he wants ; and 
then, whatever justice, tranquillity, safety, wel- 
fare, oi* liberty the State governments are able 
and willing to dispense, may be sought there, or 
obtained nowhere. 

§ 348. So far as this controversy divides the 
opinion of honest and patriotic legislators, it 
tends to throw the practical power of deciding 
measures into the hands of unprincipled and 



324 LEGISLATIVE POWERS. — SPECIAL. 

selfish politicians. If money is wanted to pur- 
chase new States, in order to change the balance 
of power, then with such politicians the general 
powers are valid and sufficient. If money is 
wanted by others for the internal improvement 
of the States we have, then with such politicians 
" general terms " are good for nothing, and the 
special power cannot be found. Such a govern- 
ment would be inefficient for all good purposes, 
and energetic only when in bad hands, to which 
it would constantly tend. It requires some phi- 
losophy, and more charity, to believe that the 
theory in question was not invented for this par- 
ticular reason; and that it is not still pertina- 
ciously defended out of respect to this particular 
end. All governmental power, not exercised 
under the -supervision and responsibility of the 
national authority, will be very likely either not 
to be exercised at all, or to be so for partial and 
local purposes, inconsistent with general justice, 
and universal liberty and right. 

§ 349. The power of Congress "to borrow 
money on the credit of the United States," is 
even more unlimited than the power of taxation. 
The amount, the terms, and the use, are all left 
to their discretion; and by the next section, 9th, 
the money may be appropriated, by law, to the 
promotion of any object calculated to effect 
either of the great purposes for which the Con- 
stitution and government were ordained and 
established by the people of the United States. 



LEGISLATIVE POWERS. — SPECIAL. 325 

The remainder of the 8th section will be con- 
sidered under the heads of the commercial power, 
the war power, and a few miscellaneous provi- 
sions. 



CHAPTER XXII. 

LEGISLATIVE POWERS. — SPECIAL. 
The Commercial Powers. 

§ 350. The power " to regulate commerce with 
foreign nations, and among the several States, 
and with the Indian tribes," is very comprehen- 
sive. The words being general, the sense must 
be general also; and, like the preceding words, 
" common defence and general welfare," in the 
same section, embrace all subjects comprehended 
under them. Taken in connection with the par- 
ticulars immediately following under the same 
head, — viz., naturalization, bankruptcy, money, 
weights and measures, and post-offices and post- 
roads, — it is difficult to conceive of any thing, in 
the line of mutual rights and duties, arising out 
of the peaceable intercourse of mankind, in the 
ordinary relations of civil life, internal or ex- 
ternal, which may not be provided for under it. 
The word commerce includes not only trade and 
traffic, but every species of intercourse, personal 
or political, in all its branches, between nations 
and individuals, or parts of nations; with the 

[326] 



LEGISLATIVE POWERS. — SPECIAL. 327 

means of cariyiiig on and sustaining such inter- 
course, whether financially, through the influence 
of currency and credit ; or physically, by locomo- 
tive or transportation agencies; for persons or 
property, in vehicles or vessels, land-borne or 
water-borne, moved by cattle, wind, or steam, 
over earth or sea, by river, lake, canal, railroad, 
or highway. 

§ 351. " To regulate " is to give the law, or 
prescribe the rule, by which all this intercourse 
is to be governed. Navigation is directly alluded 
to in the 9th section as a part of commerce, as 
it undoubtedly is; though it is so only as one of 
the means by which it is carried on, and is no 
more certainly so than any other mode of trans- 
portation or locomotion, applicable to the same 
jDurpose. " ^o sort of trade or intercourse can 
be carried on between this country and another, 
to which the word does not extend. Commerce 
is a luiit, every part of which is indicated by the 
term, and must carry the same meaning through 
the sentence," as well to the domestic as to the 
foreign.^ 

§ 352. " With foreign nations " does not mean 
between them and the United States, as commu- 
nities merely, but by all or any of the people of 
either with those of the other. So " among the 
several States " does not mean by one State with 
another in their corporate capacities (for this is 
expressly restricted by the 10th section), or by 

1 9 Wheat. R. ; 1 Gibbons v. Ogden ; 2 Story's Cora., 504. 



328 LEGISLATIVE POWERS. — SPECIAL. 

the United States with any of them merely; but 
by all the people of the United States with all 
the people of any of the States, — which is by 
all the people of the United States with each 
other. " With the Indian tribes " means with 
all Indian tribes, whether within or without the 
boundaries of the United States, or any of them, 
both as communities and individuals. Trade and 
intercourse with them, in all its forms, is subject 
to the exclusive regulation of Congress. 

§ 353. In the practice of the government, the 
commercial power has been applied to embar- 
goes, non-intercourse, non-importation, coasting- 
trade, fisheries, navigation, seamen, privileges of 
American and foreign ships, quarantine, pilotage, 
wrecks, lighthouses, buoys, beacons; obstruc- 
tions in bays, sounds, rivers, and creeks ; inroads 
of the ocean, and many other kindred subjects; 
and, doubtless, includes salvage, policies of in- 
surance, bills of exchange, and all maritime con- 
tracts, and the designation of ports of entry and 
delivery. 

§ 354. Wherever the power of Congress ex- 
tends, they are the exclusive judges of the 
proper reasons and motives for exercising it, 
and are not to be controlled by any allegation 
that it was done for a purpose not contemplated 
in the original grant. This commercial power 
has been employed for the purposes of prohibi- 
tion, reciprocity, retaliation, and revenue, — some- 
times, also, to encourage domestic navigation 



LEGISLATIVE POWERS. — SPECIAL. 329 

and manufactures, by bounties, discriminating 
duties, and s^^ecial privileges and preferences, 
and to regulate intercourse, with a view to mere 
jjolitical objects ; and the right to do so has been 
sustained by the unequivocal voice of the na- 
tion.^ 

§ 355. Attempts have been made to exclude 
from the commercial power of Congress what has 
been called the strictly internal traffic of the 
inhabitants of a State among themselves. " But 
what regulation of commerce does not extend to 
the internal commerce of every State ? What are 
all the duties upon imported articles, amount- 
ing in some cases to prohibitions, but so many 
bounties upon domestic manufactures, aifecting 
the interest of different classes of citizens in dif- 
ferent ways? What are all the provisions of 
the coasting Act, which relate to the trade be- 
tween district and district of the same State ? 
In short, what regulation of trade between the 
States, but must affect the internal trade of each 
State? What can operate upon the whole, but 
must extend to every part? "^ If, in the opinion 
of Congress, the common defence, or general 
welfare, or the security of liberty, should be 
found to require their interference, in regard 
to any traffic or other intercourse among the 
inhabitants of any of the States with each other, 
or anybody else, it would be exceedingly diffi- 
cult to exclude the jurisdiction of the United 

1 Ibid., 519. 2 Hamilton's Opinion on the Bank. 



330. LEGISLATIVE POWERS. — SPECIAL. 

States, or to establish any exclusive right thereto, 
in any particular State. 

§ 356. This power has been decided to be 
exclusive in Congress. The reasoning by which 
this decision is supported in the case last cited, 
is summarily stated by Judge Story thus : " The 
full power to regulate a particular subject im- 
plies the whole power, and leaves no residuum, 
. . . and necessarily excludes the action of all 
others who would perform the same operation 
on the same thing. Regulation is designed to 
indicate the entire result, applying to those parts 
which remain as they were, as well as to those 
which are altered." If it be admitted that this 
course of reasoning is sound and conclusive, 
it must also be admitted, that it is difficult to 
see wherein it is less apj)licable to any other 
subject over which the jurisdiction of Congress 
extends. 

§ 357. Their authority in all is supreme, and 
paramount to all other. ]N^evertheless, it has been 
decided by the same court, that, in the case of 
bankruptcy, which is placed undoubtedly within 
the exclusive jurisdiction of Congress, if they 
do not act, the State laws are valid. And, in re- 
gard to this very commercial power. Judge Story 
says, in the same chapter, discussing the right 
of a State to authorize an obstruction to its 
navigable rivers and creeks, that, " if Congress 
has passed no general or special Act on the 
subject, the invalidity of such a State Act 



LEGISLATIVE POWERS. — SPECIAL. 331 

must be placed entirely upon its repugnancy to 
the power to regulate commerce in its dormant 
state ; " the adequacy of which he hesitates to 
affirm. 

§ 358. So that in. this case, as in others, the 
exclusive power of Congress over the subject 
would seem to amount to little more than the 
right to make their power exclusive, if they 
please ; though it is said their will on the whole 
subject is manifested as well by what they leave 
unaltered, as by what they alter. By neglecting 
to act on any branch of the subject, they seem 
simply to authorize their subjects, personal and 
political, to be a law to themselves. Individuals 
would so understand it, in relation to matters 
coming within their exclusive cognizance; and 
State legislatures, or other political bodies, would 
be likely so to understand it, in relation to such 
things as they claimed a right to control. There 
being no constitutional prohibition, and no para- 
mount law contravening their action, the au- 
thority of their own State constitutions would 
be apt to prevail. 

§ 359. Besides this general power of regulat- 
ing commerce in all its branches, the Constitu- 
tion mentions several specific subjects, which, 
though included in the commercial powers, assist 
in explaining its scope and extent. They are 
neither specifications, limitations, nor extensions, 
but only specimens of the great powers included 
under the general head of regulating commerce; 



332 LEGISLATIVE POWERS. — SPECIAL. 

and are equally valid as definite grants of power 
to Congress, whether they are embraced in one 
or more prior or subsequent grants of power, or 
whether they cover one or more other grants. 
The first of these is " to establish a uniform rule 
of naturalization." This, being a branch of inter- 
course with the people of other States, is ob- 
viously a part of the regulation of " commerce 
with foreign nations." A " uniform rule " has 
been held to carry with it the whole subject of 
naturalization itself, and to be, like commerce, 
exclusive of any authority, on the part of the 
several States, over the subject.^ 

§ 360. Though the authority is " to establish a 
uniform rule," Congress have never held their 
power limited to that, but always that it extended 
to the power of granting naturalization directly, 
either in individual cases or to whole classes of 
people, without regard to any uniform rule what- 
ever. This power of naturalization, also, like all 
the other powers specifically vested in Congress, 
is so only as a part of the general powers of the 
government, and by no means as an addition to 
them. Congress would have had this power, by 
virtue of being the legislative department of the 
government, independent of this particular grant. 
And although it is here specifically named as a 
part of the law-making power, the grant has not 
been understood to include the whole power of 

1 1 Kent's Com., 397 ; Chirac v. Chirac, 2 Wheat. R. ; Houston v. 
Moore, 5 Wheat. R. ; Golden v. Prince, 3 Wash. R. 



LEGISLATIVE POWERS. — SPECIAL. 333 

the government over the subject. The President 
and Senate have, by treaty, repeatedly incor- 
porated foreign territory, with all its inhabitants, 
granting all the rights of citizenship to all the 
people, of whatever race, color, or description. In 
every instance, it was agreed that they should, in 
due time, be admitted as States into the Union. 

§ 361. In the case of Texas, a joint resolution 
of the two Houses of Congress, of March 1, 
1845, authorized the admission of the Republic 
of Texas, in either of two modes, — by treaty, 
to be negociated by the executive with the Re- 
public of Texas; or by the acceptance, on the 
part of Texas, of certain " terms, guaranties, 
and conditions," specified in the resolution. The 
annexation was made, in fact, by the accept- 
ance of the propositions of Congress. So that 
the treaty was made directly with Texas by Con- 
gress, and not by the President, with the advice 
and consent of two-thirds of the members of 
the Senate, as the treaty-making power. In this 
way, the annexation was effected with the con- 
sent of only a majority of two in the Senate and 
about an equal proportion of the House, when it 
could not have been done by the constitutional 
majority of the Senate, as the treaty-making 
power. This Act affirms two propositions, — 
that Congress can make a treaty with a foreign 
nation; and that the President and Senate may 
do by treaty all that Congress did in this case 
by joint resolution. 



334: LEGISLATIVE POWEKS. — SPECIAL, 

§ 362. Texas was actually constituted a State 
in the Union under the Constitution, with all 
the rights of other States, necessarily including 
a foreign war, which Texas then had on hand, 
and a large war debt, which, by taking the 
nation and all its resources, we became bound to 
pay. Here was not only the naturalization of a 
whole nation of aliens, both bond and free, and 
an admission of a new State into the Union, 
which are, by the Constitution, within the ex- 
press powers of Congress; but substantially a 
declaration, by adoption, of a foreign war, and 
an assumption of a foreign debt, both of which 
belong most emphatically to Congress. All 
these are included in the general powers and 
purposes of the government, as developed in the 
introductory or enacting clause of the Constitu- 
tion, or they could not be rightfully exercised by 
any department of the government. Belonging 
regularly to the government, they devolve, on 
the distribution of its powers, so far as they re- 
quire the making of law, upon Congress, which 
is invested with the whole legislative power of 
the Constitution. They also belong to Congress 
by this and other express grants. ^Nevertheless, 
it must now be considered as settled, by the 
practice of the government, the admission of Con- 
gress, and the acquiescence of the nation, that 
these powers also belong to the President and 
Senate, as the treaty-making power; for these 
treaties have all been sanctioned and held valid 



LEGISLATIVE POWERS. — SPECIAL. 335 

by all departments of the government and people 
of the country, and continue in force to this day. 

§ 363. So that, under this clause. Congress 
may not only make " a uniform rule of natural- 
ization," but may directly confer naturalization 
itself without any rule; and the President and 
Senate may do the same by treaty, on the ground 
that it is a part of the great purposes for which 
the government was ordained and established, — 
"to promote the general welfare of the United 
States ; " and as such not only devolves on Con- 
gress, as the legislative department of the gov- 
ernment, but also on the treaty-making power, 
as a co-ordinate authority in establishing the law 
of the land, so far forth as it may properly be 
made a matter of compact or treaty between inde- 
pendent States. ;No department can exceed the 
general powers and purposes of the Constitution, 
as detailed in the introductory or enacting clause ; 
and if any special power given to any depart- 
ment or officer should, on any construction, seem 
to go beyond them, the difficulty must be recon- 
ciled either by restraining such construction, or 
by considering such special power only as an 
instance or specimen, designed to show the 
breadth and extent of the general powers, of 
which it constitutes only a part. 

§ 364. The next specific power mentioned in 
this 8th section, and belonging to the general 
head of the regulation of commerce, is " to es- 
tablish . . . uniform laws on the subject of 



336 LEGISLATIVE POWERS. — SPECIAL. 

bankruptcies throughout the United States." 
My Lord Coke derives the word Ijarikrwpt from 
hanque, which is mensa, and route, which is a 
sign or mark; as we say a cart-route is a sign or 
mark where a cart hath been or gone. Others, 
among whom is Mr. Justice Blackstone, say it is 
derived from hanque and rumpue, or hmicus and 
rujjtus, signifying hroTcen. In either case, the 
meaning would be, that the hanque, the table, 
or place of payment and discount, is broken 
up and gone. It designates metaphorically, and 
applies to, the man who cannot, will not, or at 
any rate does not, pay his debts or perform his 
pecuniary obligations. The defect may be vol- 
untary, arising from dishonesty or fraud; or it 
may be involuntary, arising from inability or 
misfortune. In both cases the interest of the 
parties requires the action of the government, — 
the creditor to be secured against fraud, and the 
debtor to be protected against oppression. 

§ 365. " Perhaps as satisfactory a description 
of a bankrupt law as can be framed is, that it is 
a law for the benefit and relief of creditors and 
their debtors, in cases in which the latter are 
unable or unwilling to jDay their debts. And a 
law on the subject of bankruptcies, in the sense 
of the Constitution, is a law making provisions 
for cases of persons failing to pay their debts." ^ 
The Constitution makes it the duty of the gov- 
ernment to "establish justice;" w^hich involves 

1 3 Story's Com., p. 13, note. 



Li;|GISLATIVE POWERS. — SPECIAL. 337 

the doing it themselves, and the administration 
of it among* the people. It also prohibits the 
States from " impairing the obligation of con- 
tracts." The justice that enforces the exact or 
partial performance of a contract, or payment of 
a de1)t, in a particular case;' and the justice that 
protects the violation of that duty, or discharges 
it, in whole or in part, under given circum- 
stances, — covers the whole law of debtor and 
creditor. 

§ 366. It decides when and in what propor- 
tions the debtor can and ought to pay a particu- 
lar creditor, or all his creditors; and when and 
on what terms his creditor or creditors shall 
release him, or discharge the debt. This is the 
breadth of a law of bankruptcies. To this ex- 
tent it seems to be required for the regulation of 
commerce; and short of this it could not stop, 
consistently Math the next clause, which confers 
on Congress the power to fix the nature and 
value of the currency to be used in payments 
and exchanges. 

§ 367. The w^ords are : " To coin money, reg- 
ulate the value thereof, and of foreign coin." 
Money or currency is an essential element of 
commerce. It is as much the means or instru- 
ment of trade as navigation or transportation is 
of intercourse, and is equally included in the 
regulation of commerce. "It is clear that the 
power to regulate commerce among the States 
carries with it, not impliedly, but necessarily and 

22 



338 LEGISLATIVE POWERS. — SPECIAL. 

directly, a full power of regulating the essential 
element of commerce, namely, the currency of 
the country, the money, which constitutes the 
life and soul of commerce." -^ But the Constitu- 
tion has further particularized in the words of 
this clause. " Money " is the measure and rep- 
resentative of value. " To coin " it, is to form, 
fashion, fabricate, or convert into "money," any 
thing of which it may be made. To " regulate 
the value thereof" is to assign a value to it as 
money, — without reference to any value it may 
or may not have, as a material for other purposes 
than those assigned to it, — by making it lawful 
money. 

§ 368. Congress is not restricted as to the 
materials they may make use of, or their worth 
or value, independent of their authorized use as 
money; nor is it required that they should have 
any such value. Even the operation of con- 
verting it into money is described only by the 
verb " to coin," which, if it means any thing in 
addition to the act of converting it into money, 
includes only the government stamp, by which 
the act is authenticated : and even this is doubt- 
ful, for, at some times, particular articles of mer- 
chandise have been made a legal tender as money, 
without a stamp; and, under our Constitution, 
foreign money has been similarly adopted, and 
made lawful currency, without any mark of our 
government upon it. 

1 Webster's Speech on the Surplus Revenue, 4 Works, 315. 



t 



LEGISLATIVE POWERS. — SPECIAL. 339 

§ 369. From the formation of the Union, in 
1774, to the adoption of the Constitution, the 
money of the country was mostly paper. Such 
as was metalhc was composed of gold, silver, 
or copper, with their respective amalgams and 
adulterations. These metals, with several others, 
have been coined ever since; and, at this moment, 
(1866), the principal material of our lawful 
money, in actual use, is paper. The Constitu- 
tion makes no limitation to either of those mate- 
rials, and no exclusion of either or of any other. 
The mention made in the 10th section, of " gold 
and silver coin," plainly shows that there may be 
other coin which is neither gold nor silver; and 
such was the fact then, has been ever since, 
and is so still. The valuation of " foreign coin," 
and the offence of counterfeiting " current coin," 
are not restricted to gold and silver, or any other 
material. These expressions all show that " coin," 
either as a noun or as a verb, has no fixed rela- 
tion to any particular material, mineral or vege- 
table, but applies to any thing that may be made 
or authorized to pass in payments and exchanges 
as the lawful money of the United States, whe- 
ther originally so denominated by our govern- 
ment, or in foreign countries. 

§ 370. The power that prescribes what shall 
be money, at the same time prescribes what shall 
not be, and of course may determine what may 
or may not be used as substitutes or rei^resenta- 
tives of it. The government pajDcr now form- 



340 LEGISLATIVE POWEES. — SPECIAL. 

ing, almost exclusively, the currency of the 
country, is the money of the country. It makes 
no pretension to being a substitute or represen- 
tative. All substitutes for money are redeemable 
in that; and that is redeemable in nothing, so 
long as it constitutes money, and is itself a legal 
tender for all the purposes of money. 

§ 371. " To fix the standard of weights and 
measures " is another branch of the commercial 
power, having a similar relation to its principal 
as is occupied by navigation, transportation, 
currency, bankruptcy, &c. But it has never 
been exercised by Congress, and still remains a 
dormant power. In what position this leaves 
the law on the subject, has not been judicially 
decided or discussed. Is there any actual stand- 
ard for the whole country? If so, what is it? Is 
it the one fixed by the English law, before the 
devolution? If there is no common standard, 
is the one in use in the respective States, at the 
adoption of the Constitution, to be applied in 
each of them respectively; or one since adopted 
by any of them? Can any other department of 
the government adopt or apply a standard, tem- 
porarily or specially, under these or any other 
circumstances ? 

§ 372. That the power is exclusive, in the 
sense that it cannot be exercised by any whose 
jurisdiction is limited to a part of the country 
only, is most obvious. But is it exclusive in the 
sense that State legislation on the subject, under 



LEGISLATIVE POWERS.— SPECIAL. 341 

all circumstances, is prohibited?^ When a State 
government is expressly prohibited from doing a 
thing, as from granting letters of marque or 
coining money, their action on the subject would 
be absolutely void. "When a power is limited 
to the general government exclusively, in ex- 
press terms, as in the case of the District of 
Columbia, certain forts, dockyards, &c., any 
State legislation would also be void. In these 
two w^ays only, by an express prohibition or an 
express exclusion, does the Constitution directly, 
pro2)rio vigore, take away or restrain the exer- 
cise of State legislation. IVhen a power is sim- 
ply delegated to the general government, such 
grant in no way directly interferes with State 
legislation or individual action. The exercise 
of the power may do both, or either; but the 
Constitution itself, by such a provision, does 
neither. 

§ 373. If, from the nature of the power, the 
object and effect of its exercise is to make a 
uniform system of paramount law and adminis- 
tration for the wdiole country, it necessarily 
supersedes all inferior jurisdictions, and becomes 
exclusive, from its very nature ; because any 
external interference with it would obstruct the 
national authority, and destroy the uniformity 
demanded. Of this nature are laws regulating 
foreign commerce, which have been decided to 

1 By the Act of 1866, Congress have authorized the use of the metric 
system of weights and measures, since the foregoing was written. 



342 LEGISLATIVE POWERS. — SPECIAL. 

be exclusive. But if, without any such reason 
for an imphed or consequential exclusion, a par- 
ticular power is delegated to Congress, it is, 
though not necessarily exclusive, necessarily su- 
preme; and, of course. Congress may, if they 
please, prohibit any interference with their au- 
thority, as well by addition as by subtraction.^ 

§ 374. An instance of this is furnished by the 
post-office. Congress has not only " established 
post-offices," but given their establishment an 
entire monopoly of certain kinds of business, 
even punishing as a crime any participation in 
them, by virtue of State authority or otherwise.^ 
These principles are plain and practical, so far 
as they respect subjects that are single and indi- 
visible. But when apj^lied to subjects that are 
compound, involving particulars numerous and 
complicated, questions of more or less difficulty 
may arise. Take, for instance, the great subject 
of foreign commerce, — only one department of 
the whole commercial power. The Supreme 
Court have decided that it belongs to Congress 
exclusively. It includes particulars almost in- 

1 " It is obvious, that in those cases in which the United States may 
exei'cise the right of exclusive legislation, it will rest with Congress to 
determine whether the genei'al government shall exercise the right of 
punishing exclusively, or leave the States at liberty to exercise their own 
discretion." — Houston v. Moore, 5 Wheat., 83, per Johnson, J. 

2 " This power is exercised by the single act of making the establish- 
ment. But from this has been inferred the power and duty of carrying 
the mail along the post-road, from one post-office to another. And from 
this implied power has again been inferred the right to punish those who 
steal letters from the post-office, or rob the mail." — Per Marshall, C. J., 
in McCulloch v. Maryland, 4 Wheat. R., 417. 



LEGISLATIVE POWERS. — SPECIAL. 343 

numerable. Suppose Congress to have neglected 
the construction of a suitable lighthouse, break- 
water, beacon, j)ier, or buoy, in some harbor 
within a State. It is a part of the power to 
regulate commerce. In what sense is it exclu- 
sive ? 

§ 375. Would it be unconstitutional for a man, 
interested in the navigation of the harboi', to set 
up a lantern to guide in his ship in a dark night; 
or even to induce his neighbors similarly situ- 
ated, his insurance company, his town, city, or 
State, to join with him in defraying the expense 
of establishing and maintaining it? A standard 
of weights and measures for the country is also 
an exclusive national authority, not only as a 
part of commerce, but also from the extent of 
its operation; none but a national power being 
competent to it. But suppose the general gov- 
ernment do nothing, — as they have heretofore 
done with this, and some other subjects dele- 
gated to them, — may not a man have a uniform 
standard for himself? and may not a town, city, 
or State adopt the same, or a diiferent one, for 
all who acknowledge their jurisdiction, so long 
as they interfere with no paramount law? Such 
is the condition of the law of weights and mea- 
sures. Congress, having all power over the 
subject, has never exercised it. Either the ante- 
revolutionary law remains in foi'ce, or such laws 
as any of the States may have made are substi- 
tuted, or there is none. 



344 LEGISLATIVE POWERS. — SPECIAL. 

§ 376. The power " to provide for the punish- 
ment of counterfeiting the securities and current 
coin of the United States," though expressly 
conferred, is necessarily an incident to the power 
of making, regulating, or authorizing the origi- 
nals so counterfeited, and doubtless extends to 
every thing authorized to be used as money or 
currency. " To define and punish piracies and 
felonies committed on the high seas, and offences 
against the law of nations," is another commer- 
cial subject, given to Congress by a distinct and 
special grant. Piracies and felonies, as well as 
other offences against the law of nations, may be 
committed on the high seas ; but, because so com- 
mitted, they may not be exclusively cognizable 
under that law. If committed from or on board 
of an American vessel, and by persons owing 
even a temporary allegiance to the country, they 
are directly subject to our own municipal law, 
and so punishable, independent of the law of 
nations. But, whether such acts are violations 
of either or both codes, they are alike subject to 
the jurisdiction of Congress, unless within the 
municipal jurisdiction of some other nation. 

§ 377. The high seas, the locus in quo, and 
the law of nations, the rule violated, both enter 
into the nature of the offence, and constitute a 
part of itj and of course require defining for the 
same reason. The law of nations, which is a 
part of the common law,^ and like the rest of it 

1 United States v. Smith, 5 Wheat. R., 161. 



LEGISLATIVE POWERS. — SPECIAL. 34:5 

an unwritten law, is here made expressly a part 
of our Constitution, to be enforced by our gov- 
ernment.^ The high seas may be defined by the 
common law, the civil law, or by the maritime 
law ; but Congress are not bound by either. If 
the difference between piracy and robbery de- 
pends upon the line of high or low-water mark, or 
the state of the tide between them. Congress may 
define that difference. But the law of nations is 
a part of the law of the land, and to be executed 
as such by the proper departments, whether Con- 
gress define it or not. In this manner it may 
become the duty of the executive or the judi- 
ciary, or both, to find out what the law of 
nations is, and to punish the violation of it, even 
without any legislation. 

§ 378. We have seen that the government, 
under the administration of AYashington, inider- 
took to know what were the duties of neutrals, 
by the law of nations, without any definition of 
Congress ; and the judiciary were called upon 
and actually undertook to inquire, with a view 
to punish, the breach of them without legis- 
lative assistance. Both the executive and judi- 
ciary have had abundant occasion since to study 
the rights and duties of war, by the law of 

1 " As a part of the Constitution, written or unwritten, of all govern- 
ments, stand the laws of nations, necessarily, inevitably, from the relations 
which all communities bear to each other, and from the contingencies to 
which they are exposed. That being the case, and that unwritten law of 
nations being actually a part of our written law, we accept, as we must 
accept, all the consequences which follow from it." — Senator Fessenden's 
speech on the Freedmen's Bureau, in the Senate, Jan. 23, 1866. 



346 LEGISLATIVE PO WEES. — SPECIAL. 

nations, without a definition by the legislature; 
and have found authority to execute them, in 
the principles of the common law, as the houses 
of Congi'ess have found authority to j)iinish for 
contempts, without legislation. The different 
codes referred to, and adopted by our Con- 
stitution, as constituting a part of our system, 
have to be carried into effect by the executive 
and the judiciary, whenever circumstances re- 
quiring their application are brought respect- 
ively under their official cognizance. But all 
" the laws necessary and proper " to render their 
execution adequate and effective have not been 
supplied by Congress. Tlie decisions of the 
courts on this subject, and the clause of this 
section "to constitute tribunals inferior to the 
Supreme Court," will be considered when we 
come to Article III., on the judiciary. 

§ 379. The only remaining topic of this sec- 
tion, directly connected with the commercial 
power, is " to establish post-offices and post- 
roads." By the authority of two short words, 
" establish post-offices," the government have 
instituted an establishment employing more men, 
controlling more patronage, and collecting and 
disbursing more revenue, than sufficed, within a 
few years past, for the administration of the 
whole government. In 1860, there were 28,586 
postmasters. Mails were annually transported 
more than eighty millions of miles; and the ex- 
penditures were f 19,170,609. The estimates for 



LEGISLATIVE POWERS. — SPECIAL. 347 

the annual expenses are still kept within twenty 
millions; but there can be only slender reasons 
for the faith, that the receipts and expenditures 
of future fiscal years will not soon foot up to the 
formidable amount of forty millions of dollars. 
Of the aggregate amount of the whole army of 
officers, agents, contractors, and employees of the 
department, no enumeration has been found. 

§ 380. The code of laws and regulations for 
hiring, purchasing, building, occupying, repair- 
ing, protecting, and improving the places of 
business ; defining, extending, and defending the 
nature and character of their monopoly of the 
letter and newspaper transportation; and con- 
trolling, by fines, penalties, and i^unishments, all 
illegal interferences therewith, — would constitute 
a mass of learning sufficiently formidable to try 
the courage of any student whose duty it might 
become to collect, understand, and digest them. 
lN"otwithstanding the magnitude and extent of 
this important and formidable establishment, the 
whole of which has been built up and maintained, 
incidentally and inferentially, on so small a 
foundation, it has encountered fewer constitu- 
tional difficulties, and been subjected to fewer 
constitutional imj^ediments, than any other im- 
portant power of the government, though ever so 
elaborately defined and expounded, and though 
interfering much less with the daily lives and 
business of the people. 

§ 881. The verb "establish," which covers the 



348 LEGISLATIVE POWERS. — SPECIAL. 

whole action of the government in the case, is 
appHed with the same force and directness to 
" post-roads," and of coarse has a meaning 
equally broad and extensive in regard to both 
subjects. Although this part of the clause has 
been the occasion of little legislation, in conse- 
quence of the multiplicity of roads and highways 
already established by other agencies and for 
other purposes, yet the words "establish post- 
roads " are a part of the Constitution, and may 
be applied to use, whenever a proper occasion 
for the purpose may arise. The idea that the 
government of the United States is dependent 
on the States or on private corporations, or any 
body else, for a right of way, over which to con- 
vey their mails, is not likely to be suggested by 
any body, or to be much heeded if it should be. 
The little that has already been done in that 
direction is sufficient to silence any such preten- 
sion, if there were any ground for making ,it. 



CHAPTER XXIII. 

LEGISLATIVE POWERS. — SPECIAL. 

The War Powers. 

§ 382. The othei* great division of the powers 
of Congress, included in the 8th section, is the 
one embracing those necessary or appropriate 
to the " common defence of the United States." 
This great duty is devolved on the government, 
by its annunciation in the first sentence of the 
Constitution, as one of the purposes for which it 
was ordained and established by the American 
people. So far as it requires legislation, the 
duty is devolved on Congress by its being made 
the legislative department of the govei-nment, 
and vested with " all the legislative powers " 
thereof. It is again, and still more specifically 
and emphatically, delegated to Congress in the 
first clause of this section; which, as we have 
seen, either authorizes them to do it by raising 
and appropriating money for the purpose, or 
more generally, and without reference to money; 
and it is of no importance which, for in either 
case it is one of the powers vested in the gov- 

[349] 



350 LEGISLATIVE POWERS. — SPECIAL. 

ernment, and in this department of the govern- 
ment ; and so Congress are to pass all laws 
necessary and proper for its execution. 

§ 383. Several of the means for eflfecting this 
purpose are specified in this section. "To declare 
war, grant letters of marque and reprisal, and 
make rules concerning captures on land or water ; 
to raise and support armies; to provide and 
maintain navies ; to make rules for the govern- 
ment and regulation of the land and naval forces; 
to provide for calling forth the militia to execute 
the laws of the Union, suppress insurrections, 
and repel invasions; to provide for arming and 
disciplining the militia, and governing such part 
of them as may be employed in the service of 
the United States." These are commonly called 
the war powers, and are examples, but by no 
means specifications, of all the measures that may 
be adopted for the execution of the more gen- 
eral power and duty of providing for the " com- 
mon defence ... of the United States." They 
are all duplications of that power in part; and 
several of them are reduplications and pleonasms 
in respect to each other. The power to make 
and carry on war includes all the rest; and the 
power to provide armies and navies includes 
the power to regulate and govern them. The 
militia, when called forth as a part of the na- 
tional forces, may be governed as such ; and yet 
an additional provision is made for the particular 
purpose. The rights and duties of war are to be 



LEGISLATIVE POWERS. — SPECIAL. 351 

exercised subject to the law of nations. Belli- 
gerent enemies and friends, non-combatant ene- 
mies and neutrals, whether nations or individuals, 
are alike to be judged by it; and a treatise upon 
the -suliject would involve a discussion of all the 
principles and usages of the law of nations.^ 
But the rights and duties themselves, when as- 
certained, are to be executed and performed by 
such "necessary and proper" means, consistent 
with the law of nations, as Congress may adopt. 
§ 384. As a declaration of war is not essential 
to its existence, and as a war may be made upon 
the country without it, so doul^tless the United 

1 " The legal consequences resulting from a state of war between two 
countries, at this day, are well understood, and will be found described in 
every approved work on the subject of international law. The people of 
the two countries become immediately the enemies of each other ; all 
intercourse, commercial or otherwise, between them, unlawful ; all con- 
tracts existing at the commencement of the war, suspended ; and all made 
during its existence, utterly void. The insurance of enemies' property, 
the drawing of bills of exchange or purchase on the enemies' country, the 
remission of bills or money to it, — are illegal and void. Existing part- 
nerships between citizens or subjects of the two countries are dissolved ; 
and, in fine, interdiction of trade and intercourse, direct or indirect, is 
absolute and complete by the mere force and effect of war itself. All the 
property of the people of the two countries, on land or sea, are subject to 
capture and confiscation by the adverse party, as enemies' property ; . . . 
all treaties between the belligerent parties are annulled. The ports of 
the respective countries may be blockaded, and letters of marque and 
reprisal granted, as rights of war; and the law of prizes, as defined by the 
law of nations, comes into full and complete operation, resulting from mari- 
time captures, jure belli. War also effects a change in tlie mutual relations 
of all states or countries, — not directly, as in tlie case of belligerents ; 
but immediately and indirectly, though they take no part in tlie contest, but 
remain neutral. This great and pervading change in the existing condition 
of a country, and in the relations of all her citizens or subjects, external 
and internal, from a state of peace, is the immediate effect and result of 
a state of war." — Brilliant et al. v. United States, The Prize Cases, 2 
Black's Rep. 



352 LEGISLATIVE POWERS. — SPECIAL. 

States may make a war upon a foreign State 
without it. Within the present century, we have 
had three public wars. That with England, in 
1812, was initiated formally by Congress with a 
statutory declaration. That with Mexico, in 1816, 
Congress declared was instituted by Mexico, 
without their agency. The last, with the South- 
ern rebellion of 1861, had been in operation 
several months before Congress were convened 
to consider it, and never was declared at all. 
Armies and navies may be assembled and organ- 
ized by voluntary enlistment, by draft, by requi- 
sition of militia, or perhaps even by impressment, 
or any other method in use among civilized 
nations. In calling out the militia, it has not 
been the most usual method to call them by regi- 
ments, brigades, and divisions, with their officers, 
in their organized state; but to require the num- 
ber they want, in such form as they please. As 
they are authorized to govern them while in the 
service, they may doubtless organize and govern 
them by their own appointees, if that is judged to 
be the most expedient course. 

§ 385. A declaration of war is essentially a 
declaration of martial law, — a substitution of 
war, the rights of war, and the laws of war; for 
peace, the rights and law of peace; the one co- 
extensive with the other. It is not intended to 
be less a system of right and justice, or to ex- 
clude or supersede the ordinary administration 
of it, except so far as that may fail or be inade- 



LEGISLATIVE POWERS. — SPECIAL. 353 

qiiatc, or its processes come in competition with 
or impede the successful accomphshment of the 
j^aramount objects of the war. More than this 
would exceed the rights and duties of war, 
according to martial law; and less might com- 
j)romit its success, which it is the whole object 
of martial law to secure. Every thing being at 
stake in war, when " the existence of the civil 
depends upon the military power," ^ every thing 
must be made to contribute to its success, to the 
full extent of its necessities. Martial law, as a 
part of the law of nations, and of the common 
law, is a part of the Constitution of the United 
States and of the sujDreme law of the land. The 
rights and duties of belligerents and neutrals, 
wdiether nations or individuals, and the mode of 
pursuing them, are determined by it. "When in 
force, — that is, in war, — it is in the hands of the 
same executive, under the name of commander- 
in-chief, who is bound to see to the execution of 
all other law; but he acts in this by an entirely 
different set of agents, and under an entirely 
different responsibleness. In the one, they are 
bound, for the time being, ... to implicit obe- 
dience; in the other, they are expected to know 
and conform to the law. The Supreme Court 
have often disclaimed the administration of mar- 
tial law, on the ground that it formed no part of 
the judicial power of the United States;^ and it 

^ General Greene. 

2 " With the sentences of courts-martial, which have been convened 
regularlj'^, &c., . . . civil courts have nothing to do, nor are they in any 

23 



'354: LEGISLATIVE POWERS. — SPECIAL. 

is fortunate that it is so, for certainly no duty more 
ridiculously inappropriate could be imposed upon 
a learned bench of venerable judges, accustomed 
to listen, deliberate, and decide, by " bell, book, 
and candle," grave questions of civil jurispru- 
dence, than to assign them to the prompt, extem- 
poraneous, and sometimes arbitrary, direction of 
military operations and martial tribunals. These 
belong to military men, acting, for the time 
being, under a military responsibility, though 
their controlling head is a civil as well as mili- 
tary officer, bound by civil law, and to a civil 
accountability; to which also all military men 
are equally answerable at all other times. The 
complicated relations between the two systems, 
though vastly important and little understood,^ 

way alterable by them. If it were otherwise, the civil courts would vir- 
tually administer the rules and articles of war, irrespective of those to 
whom that duty and obligation has been confided by the laws of the 
United States, from whose decisions no appeal or jurisdiction of any kind 
has been given to the civil magistrate or civil courts." — Dynes v. 
Hoover, 20 Howard's Rep., 78. 

1 This at least is made abundantly manifest by the recent case of 
ex parte Milligan, in the Supreme Court, December term, 1866, whatever 
else may or may not be proved by it. 

Since the above was written, the following has appeared in the 
Gazettes, as the view taken of the Milhgan case by the Secretary of 
War: — 

" I believe that Milligan was properly convicted. I am of the opinion, that a 
true exposition of the law of this country, and of every other civilized country 
of the globe, justifies me in saying that trials, convictions, and sentences, by 
military tribunals, were perfectly legal. I do not think that the decision in the 
Milligan case is justified hy any principle of law recognized by any civil govern- 
ment on earth. It is wholly inconsistent with the protection of persons in the 
military service, or with the preservation of peace and safety in any State in 
insurrection." 

The guilt of the party, in this case, was not denied or even ques- 
tioned. " Judex damnatur cum nocens absolvitur." 



LEGISLATIVE POWERS. — SPECIAL. 355 

are too extensive to admit of discussion here. 
It is obvious, however, to remark, that if no 
vahdity is allowed to the results of martial law 
in time of war, and no immunity is accorded to 
the necessary agents for administering it under 
orders from their su^Deriors and the approval of 
the chief executive, both civil and military, of the 
nation, any longer than power remains in their 
own hands, — the instinct of self-preservation may 
sometime suggest to them the desire to postpone 
the period when they will be held personally ac- 
countable for all the evils that the exigencies of 
war, and the necessities of "common defence," 
may have brought upon individuals, however 
guilty or only unfortunate they may have been. 
The President, too, might sometime find himself 
in an awkward position, if — having appointed a 
military tribunal in time of war, accepted, ap- 
proved, and executed its decision, in conformity to 
martial law — he should afterwards, in time of 
peace, be called upon, as "the executive," to hang 
a few of his military officers for obeying his own 
orders, when they would have been liable to be 
shot for disobedience had they done otherwise. 
If war, its rights, its law, — martial law, — is 
limited to operate only in places where the com- 
mon-law courts are* forcibly suppressed, the 
rebels should have held their Congress, managed 
their government, and concocted and directed all 
the military operations of their rebellion, from 
Indiana or Illinois, or even from Washington or 



356 MISCELLANEOUS POWERS. 

Baltimore, rather than from E,ichmond. There 
would have been no more danger from the inter- 
ference of courts of law in either place, than if 
they had all been driven out by the enemy ; as 
in that case they certainly would have been. 

MISCELLANEOUS POWERS. 

§ 386. The remaining items of the 8th section 
to be considered under this head are only three. 
" To promote the progress of science and useful 
arts, by securing, for limited times, to authors 
and inventors, the exclusive right to their re- 
spective writings and discoveries." Authors and 
inventors had been held to be entitled, at com- 
mon law, to a proj)erty in the results of their 
respective labors, long before the date of the 
Constitution. It was doubtless in recognition 
of this common-law right that this clause was 
inserted. 

§ 387. The power has been exercised by pro- 
viding for copyrights and patent-rights; but as 
the power includes both the object and the 
means, giving both to Congress, if they should 
grant copy and patent rights from other motives 
than to promote science and art, or if they 
should promote science and art by other means 
than securing the rights of authors and invent- 
ors, the discretion of Congress over the whole 
subject could not be controlled. It has not been 
held to be exclusively a power of Congress, nor 



MISCELLANEOUS POWERS. 357 

to extend to other modes of introducing and 
bringing into use valuable works of either sort, 
than by authorship and invention. Though care 
has been taken to prevent the copyright or 
patent-right from coming into the possession of 
any one but the party entitled, it has not been 
held that any summaiy mode of setthng that 
right can oust the judiciary of its ultimate juris- 
diction in settling all such questions. 

§ 388. " To exercise exchisive legislation in all 
cases whatsoever, over such district (not exceed- 
ing ten miles square) as may, by cession of par- 
ticular States and the acceptance of Congress, 
become the seat of the government of the United 
States, and to exercise like authority over all 
places purchased, by the consent of the legisla- 
ture of the State in which the same shall be, for 
the erection of forts, magazines, arsenals, dock- 
yards, and other needful buildings." This pro- 
vision was not contained in any original or early 
draft of a Constitution, though the topics were 
all suggested in the South-Carolina Plan; but 
was, on the report of a committee, late in the 
session, adopted in its present form, without 
opposition. The territory to which it applies is 
distinctly described, and includes the govern- 
mental district and such " other places " as 
may be " purchased, with the consent of the 
legislature of the State," for the purposes 
named. 

§ 389. In regard to the governmental dis- 



358 MISCELLANEOUS POWEES. 

trict, it must be ceded by the State. In regard 
to the " other places," they may be purchased of 
individuals; and the State has no other neces- 
sary concern with it than " by the consent of 
its legislature " to the purchase. Those things 
being done in the respective cases, the State in 
which the places are situated have relinquished, 
in the form required and i*endered effectual by 
the Constitution, all their right of government 
or jurisdiction over them. The consequence is, 
that the general government, which before had 
the same authority over them that they had over 
the rest of the United States, now becomes the 
sole authority, to the exclusion of that of the 
State. These acts place the districts in question 
in the same relation to the government that the 
Territories stand by the 3d section of the fourth 
Article, subject to the exclusive legislation of 
Congress, — Congress being here and every- 
where the legislature of the nation, and gov- 
erning the whole land by virtue of the powers, 
and subject to the restrictions, of the Constitu- 
tion.^ "The power to ^make all needful rules 
and regulations respecting the territory or other 
property belonging to the United States ' is not 
more comprehensive than the power ' to make all 
laws which shall be necessary and proper for 
carrying into execution ' the powers of the gov- 
ernment." 

1 McCulloch V. Maryland, 4 Wheat., 422, the Supreme Court, per 
Marshall, C. J. 



MISCELLANEOUS POWERS. 359 

§ 390. The State transfers no political power, 
and does not purport to do so. The Constitution 
confers on them no such right. All the Consti- 
tution authorizes is to transfer, or consent to the 
transfer of, the title, and tliereby to extinguish or 
relinquish their own political power quoad lioc. 
But the government of the United States takes 
no political power by transfer, and could not ex- 
ercise it if they did. All their political power is 
held under, and by virtue of, the Constitution. 
This clause confers on them no new power, but 
the right to receive and hold the territory in 
question for the purposes specified, and then to 
govern it, as they do the rest of the country, 
under the Constitution, only exclusively; that is, 
" exclusive " of the State authority. The idea 
that, imder the words '' exclusive legislation," 
Congress can claim an absolute, unlimited, and 
boundless authority, independent of the provi- 
sions and restraints of the Constitution, is not 
consistent with the language or logic of the in- 
strument. Who ever supposed that they could 
pass a " bill of attainder, or ex post facto law," 
or grant a "title of nobility," any more for the 
district of Columbia than they could for the rest 
of the country? 

§ 391. The restraints of the Constitution are 
no more applicable to this clause than the grants 
are. Whatever of either belongs to the legis- 
lative power of the government, applies as well 
to the district as to the rest of the United States. 



360 MISCELLAKEOUS POWERS. 

But this clause makes no addition to that power, 
the word " exclusive " being neither an enlarge- 
ment nor a qualification. Congress may undoubt- 
edly so legislate as to " provide for the common 
defence, promote the general welfare, and secure 
the blessings of liberty " there, which covers 
every thing that any good government can do, 
there or anywhere else ; not because the power is 
granted by the words exclusive legislation, but 
because it is a part of the avowed purposes 
of the Constitution, and expressly delegated to 
Congress as the legislative department, to be 
exercised for the benefit of all the people of the 
United States. 

§ 392. "In all cases whatsoever" is no en- 
largement of the power. If the power exists, it 
may be applied to all cases as well as to any. 
In the case of Cohens v. Yirginia,^ an attempt 
was made to consider Congress, when acting 
under this clause, as a mere local legislature, and 
not administering the supreme law of the land, by 
virtue of the general powers of the Constitution. 
But the Supreme Court held directly the con- 
trary, — that the power belonged to "Congress, 
as the legislature of the Union; for strip them 
of that character, and they would not possess it. 
In no other character can it be exercised.". . . 
" Congress is not a local legislature, but exer- 
cises this particular power, like all its other 
powers, in its high character, as the legislature 

1 6 Wheat. Rep. 



MISCELLANEOUS POWERS. 361 

of the Union." ^ — "Exclusive legislation" is sole 
legislation, 'projpria virtus, not participated with 
another. 

§ 393. It has been sometimes imagined, that 
Congress could do some things in those places 
not authorized to be done elsewhere. As in- 
stances of this kind, the establishment of a bank, 
an institution of learning, giving freedom to 
slaves, and granting the right of suffrage to 
colored citizens, have been frequently mentioned. 
But the idea is considered to be wholly errone- 
ous. ]^ot that these things may not be done, 
for most of them have been done; but that the 
authority for doing them is not local, or derived 
from this clause of the 8th section, but is gen- 
eral, and derived from the general and avowed 
objects of the Constitution, which constitute the 
rights and duties of the government, and are 
assigned directly to Congress by the 1st section, 
which makes it the legislative department, and 
vests in it " all the legislative powers " of the 
government ; and again, by the first clause of 
the 8th section, which authorizes them specially 
" to provide for the common defence and general 
welfare," — two particulars of the great purposes 
of the Constitution, and of all good government, 
which comprehend and include all others. 

§ 394. It does not follow, that because the 
legislative powers of Congress, under the Con- 

1 Opinion of the Court, per Marshall, C. J., 6 Wheat. Rep. See also 
5 Wheat. R., 317 ; Loughborough v. Blake. 



362 MISCELLANEOUS POWEES. 

stitution, are the same throughout the United 
States, it is expedient to legislate for all places 
in the same manner. The power of Congress 
over the district, &c., is " exclusive ; " therefore 
every thing that is to be done there by legislation 
must be done by Congress. But, in the States, 
there are subordinate legislatures. These, though 
not acting by virtue of any grant from the Con- 
stitution of the United States, are still authorized 
by their State constitutions to legislate, in subor- 
dination to the restrictions and disabilities cre- 
ated by the national Constitution and laws. 
Congress may therefore leave to the State legis- 
latures such portion, as in their discretion they 
judge proper, of the mere local interests and 
jurisdiction of the States, as are not expressly 
or impliedly prohibited to them, by or under the 
Constitution of the United States. It is on this 
ground, and for these important purposes, that 
the local governments are sustained. 

§ 395. For the District of Columbia, &c., where 
no such local governments exist. Congress, hav- 
ing the " exclusive " power, must exercise the 
whole. There is a peculiarity in the mode of 
expression in this clause, which seems necessarily 
to indicate this distinction in its very terms. By 
the other clauses, " Congress shall have power to 
lay and collect," " to pay," " to provide," " to bor- 
row," " to regulate," " to establish," &c., — terms 
which show an intention to delegate an original 
power of direct action. But here it is " Congress 



MISCELLANEOUS POWERS. 363 

Bhall have power to exercise . . . legislation ; " 
that is, to exercise a power to make laws. It 
does not purport to grant an original power 
to make laws, so much as to grant a license to 
exercise, " exclusively," such a power already 
possessed. The real object and effect of the 
provision seems to be to prescribe a mode of 
extinguishing the State jurisdiction, and render- 
ing their own "^'exclusive;" and not to make any 
new delegation of authority to the government 
of the United States, which was already ample 
without it. 

§ 396. The Constitution of the United States 
is a fundamental law for the whole country; and, 
if it is adequate to the exigencies of government, 
it is competent to all the purposes for which any 
good goverament was ever instituted, over the 
whole United States, and every part thereof. 
The efficiency of the government is all derived 
from the Constitution, and is equal in all places 
within its jurisdiction. All their power is de- 
rived from it, and must be exercised under it, and 
is not different in kind, or greater in degree, in 
one place than in another. It is supreme every- 
where. It is inclusive of all subordinate govern- 
ments, where there are any; and exclusive, where 
there are none. It is permanently exclusive, if 
there can be no other. It is temporarily exclu- 
sive, till a subordinate is instituted. It becomes 
exclusive again, if a subordinate is extinct, 
whether by right or by wrong; and it remains 



364: MISCELLANEOUS POWEES 

exclusive, when it is so, till a subordinate is right- 
fully restored. 

§ 397. The last item in the 8th section is, 
" to make all laws which shall be necessary and 
proper for carrying into execution the foregoing 
powers, and all other powers vested by this Con- 
stitution in the government of the United States, 
or in any department or officer thereof." This 
clause first appeared, in an abridged form, in the 
South-Carolina Plan. In its enlarged form, it 
was rejDorted by M}\ Kutledge, from the Com- 
mittee of Detail, and adopted without opposition 
by the Convention. By the Committee of Re- 
vision it was again reported, with a slight verbal 
alteration, making little addition and less im- 
provement; and again adopted by the Conven- 
tion, as it now stands, without opposition or 
discussion. It was, however, violently assailed 
before the people and in the State conventions. 
It was called the " sweeping clause," and repre- 
sented as conferring new and indefinite, if not 
absolutely unlimited, powers of general legisla- 
tion, for all 23nrposes whatsoever. 

§ 398. It was successfully defended, however, 
before both tribunals, and particularly in the 
" Federalist," ^ on the ground that it was only 
declarative of a truth which resulted necessarily, 
by implication, from the fact of establishing a 
government vested with any certain and definite 
rights and duties. The powers so vested, what- 

iNos. 33, 44. 



MISCELLANEOUS POWERS. 365 

ever they might be, inehided the means of 
execution in the very terms of the grant, and 
extended to all means not excepted in the Con- 
stitution, not immoral in their nature, and not 
contrary to the essential objects of civil society. 
The principle has been repeatedly sanctioned by 
the Supreme Court, and stands in their reports, 
embodied in the forcible and exact language of 
Chief Justice Marshall, that a " j^ower vested 
carries with it all those incidental powers which 
are necessary to its complete and effectual exe- 
cution." 

§ 399. But even this vindication, conclusive as 
it is, would almost seem to be a work of super- 
erogation. Independent of this clause, the Con- 
stitution ordains and establishes a government 
for certain specified and avowed purposes, and 
divides it into three departments, constituting 
Congress the legislative department, and vesting 
in it " all legislative powers herein granted," — 
which can mean nothing else than all such 
powers rightfully held and to be exercised, in 
virtue of the Constitution, for the pui;poses 
thereof. What these are, can be determined by 
answering two questions, — What are legislative 
powers? and, What governmental powers require 
legislation? The first is answered by the lexi- 
cographers; the second by the application of a 
logical analysis to the terms of the Constitution. 
Both would thus be answered just as effectually, 
and in the same manner, as they are in this clause. 



3G6 MISCELLANEOUS POWERS. 

§ 400. The lexicographers tell you, that legis- 
lative power is an authority to make laws ; and 
your dialectics will show you, that certain powers 
of the government, or purposes of the Constitu- 
tion, cannot be properly executed without making 
laws. This is exactly what, and no more or less 
than, this clause asserts. It neither gives any 
new power, nor enlarges any old one. It simply 
defines the legislative jDOwer as granted to Con- 
gress by the Constitution ; which would have 
been defined in the same manner, and almost in 
the same words, without it, — " power to make 
all laws . . . for . . . the execution of all the 
powers of the government." 

§ 401. It is an exact and logical definition 
or description of the legislative power of Con- 
gress, as conferred by the Constitution ; and 
states precisely what that power is, and would 
have been, and would have been known to be, 
if this clause had not been inserted. It is valu- 
able and useful, because it is a plain and intel- 
ligible annunciation of important truth. It can 
be liable to no reasonable objection, not only 
because it is truth, but because it adds nothing, 
and alters nothing, in the Constitution, but leaves 
it just what it Avould have been otherwise. " If 
no other motive for its insertion can be sug- 
gested, a sufficient one is found in the desire to 
remove all doubts respecting the right to legis- 
late on that vast mass of incidental powers 
which must be involved in the Constitution, if 



MISCELLANEOUS POWERS. 367 

that instrument be not a splendid bauble." ^ 
" The Constitution of the United States has not 
left the right of Congress to employ the neces- 
sary means for the execution of the powers con- 
ferred on the government, to general reasoning." 

1 Per Marshall, C. J., for the Court, in McCuUoch v. Maryland, 4 
Wheat. R., 420, 411. 



CHAPTEK XXIY. 

LEGISLATIVE POWERS. — SPECIAL. 

§ 402. Besides the duties specially assigned 
to Congress in the different sections of the first 
Article, others are so assigned in the subsequent 
Articles. By Article II., " Congress may deter- 
mine the time of choosing the electors " of Presi- 
dent and Yice-President in the States, " and the 
day on which they shall give their votes," in their 
respective States, "which day shall be the same 
throughout the United States." They " may 
by law provide for the case of removal, death, 
resignation, or inability both of the President 
and Vice-President, declaring what officer shall 
then act as President; and such officer shall act 
accordingly, until the disability be removed, or a 
President shall be elected." But the office shall 
first devolve on the Vice-President, in case of 
such vacancy in the office of President. 

§ 403. The duty of " providing " for an exi- 
gency necessarily involves the duty of ascer- 
taining when it has occurred. Removal can be 
only by impeachment and conviction. Resigna- 

[368] 



LEGISLATIVE POWERS. — SPECIAL. 3G9 

tion or refusal, Congress have decided, can be 
proved only by writing, duly signed and deliv- 
ered. But "inability," — what is that? If it is 
moral, it might perhaps be ascertained by im- 
peachment and conviction before the Senate, and 
become removal or disqualification by judgment 
of law. If it is physical or intellectual, how is it 
to be dealt with? Is absence from the United 
States, voluntary or involuntary, a moral or phys- 
ical inability to discharge the duties of the ofiice ? 
A similar difficulty might arise in ascertaining 
when the disability is removed. Congress has 
not yet provided for these exigencies beyond the 
accession of the President of the Senate, and 
Speaker of the House of Representatives resj^ec- 
tively, in succession after the Vice-President, 
and then a new election of President.^ 

§ 404. By the 2d section of this Article, it 
would appear, that although the executive power 
is vested in the President, and he is bound to 
" take care that the laws be faithfully executed," 
yet he can appoint no officers to assist him in this 
duty, but such as are established by law; nor 
then even, without the advice and consent of the 
Senate, if in session, except in case of " such in- 
ferior officers " as Congress may authorize to be 
appointed by him alone, or by the courts of law 
or the heads of departments. AVho are "such 
inferior officers " neither the Constitution nor 
any acts of the government has yet settled. 

1 Some additional provisions have more recently been made. 
24 



370 LEGISLATIVE POWERS. — SPECIAL. 

Doubtless they do not include either of those by 
whom " such inferior officers " may be appointed ; 
but it would be difficult to establish an exclusion 
of any other officers whose appointment should 
be authorized in that manner by law. 

§ 405. By Article III., " Congress may, from 
time to time, ordain and establish . . . inferior 
courts ; " and, by section 8 of Article I., they have 
power "to constitute tribunals inferior to the 
Supreme Court." They are also authorized to 
regulate the appellate jurisdiction of the Supreme 
Court, as confeiTcd by the Constitution, and to 
make " exceptions " from it; which " exceptions," 
as the whole "judicial power of the United 
States " is vested in the Supreme and inferior 
courts, must inure to the inferior courts. They 
have also, by the 3d section of Article III., 
express "power to declare the punishment of 
treason," — which they must necessarily have 
done in order to carry " into execution . . . the 
powers vested in the government," if this special 
provision had not been made. 

§ 406. The preceding Articles are mainly de- 
voted to the organization, jurisdiction, and mode 
of operation of the three departments of the 
government; and the second and third, being 
upon the executive and judicial departments, 
include, incidentally only, the legislative pow- 
ers above specified. The subsequent Articles 
provide certain rules, regulations, orders, and 
precepts, on sundry important miscellaneous sub- 



LEGISLATIVE POWERS. — SPECIAL. 371 

jects; but incidentally either delegate particular 
legislative powers expressly, or develop some 
general powers necessarily devolved or elsewhere 
conferred upon Congress, as the legislative de- 
partment of the government. The first section 
of the fourth Article is, " Full faith and credit 
shall be given in each State to the public acts, 
records, and judicial proceedings of every other 
State. And the Congress may, by general laws, 
prescribe the manner in which such acts, records, 
and proceedings shall be proved, and the effect 
thereof." 

§ 407. The " faith and credit " of a record is its 
efficacy in establishing the fact which it asserts. 
The "fliith and credit" of the "acts and pro- 
ceedings " recorded, is their force and effect in 
relation to the subject-matter so acted upon. 
Evidence is either priTha facie only, and im- 
peachable by superior evidence, or absolutely 
conclusive and unimpeachable. " Full faith and 
credit " is that for which it was made, — what it 
has by law, when and where it was authorized and 
required to be made. Such a degree of credit, 
the "public acts, records, and judicial proceed- 
ings" of every State shall have in every other 
State, by constitutional right, independent of any 
legislation on the subject. 

§ 408. But Congress may prescribe the man- 
ner of proving them, " and the effect thereof." 
Under this authority. Congress have, by Act of 
May 26, 1790, prescribed the mode of authenti- 



372 LEGISLATIVE POWERS. — SPECIAL. 

eating the legislative Acts of a State, and the 
form of attestation for jndicial records; and they 
provide that such judicial records shall have the 
same faith and credit, " in every court within the 
United States, as they have in the courts of 
the State from whence they were taken," but say 
not one word about "the effect thereof." The 
" effect thereof," like its " faith and credit," may 
apply to it as evidence of the fact recorded, or 
to the force and efficacy of the fact itself. With- 
out saying whether it alludes to one or the other, 
or both of these respects, the Constitution says 
it shall have "full faith and credit;" and the 
statute reiterates that this is the " same faith and 
credit " it has in the courts of the State. 

§ 409. It is well known, that, in a State where 
a judgment at law is rendered, the authorized 
record of that judgment has " faith and credit " 
beyond the simple fact that such a judgment was 
rendered. The judgment itself has "faith and 
credit " as a legal and final determination of the 
right in controversy, unless it is open to further 
proceedings under the law by which it was 
authorized. To this extent, " faith and credit " is 
the "effect thereof," and "credit" and "effect" 
are identical.^ But if these terms are identical, 
then "full faith and credit" must include all 
" the effect " it has where it was made ; and this 
by constitutional right. If, notwithstanding all 

1 Mills V. Duryee, 7 Cr. Eep., 481; and Hampton v. McConnel, 3 
Wheat. R., 234. 



LEGISLATIVE POWERS. — SPECIAL. 373 

this, Congress are absolutely authorized to " pre- 
scribe " " the effect thereof," then they may en- 
large or diminish " the effect " so held to be 
included in its "faith and credit." At present 
the legislative provision does not reach it, in 
reference either to " public acts, I'ecords, or ju- 
dicial proceedings." 

§ 410. By Article lY., section 3, " new States 
may be admitted by the Congress into this 
Union." This power has received a construction 
in practice as broad and unlimited as its terms. 
Its only restrictions relate to pre-existing States, 
and will be reverted to under that head. 'New 
States have been created and admitted from ter- 
ritoi-y originally included within the treaty limits 
of the country ; from territory acquired since the 
adoption of the Constitution, by purchase, con- 
quest, and treaty, from foreign nations; and, in 
one instance, by incorporating a foreign State 
entire, — government, laws, and people, — directly 
into the Union, as a component part of the na- 
tion, conferiing citizenship alike on all its inhab- 
itants, whether aliens, Indians, or slaves, and 
without distinction of race or color. With this 
practical construction of the Constitution, adopt- 
ed and carried out by that school of our politi- 
cians habitually clinging to the most narrow 
construction of the powers of the government, 
it is difficult to see what territory or country or 
people may not be admitted, or for what ade- 
c[uate reason any can be excluded. 



374 LEGISLATIVE POWERS. — SPECIAL. 

§ 411. After seeing the power of admitting 
new States thus broadly asserted and practised, 
we may consider whether by any and what 
.means States thus admitted may get out of the 
Union. By being so admitted, a State becomes, 
if it was not before, a component part of the 
nation; and as this nation, no more than any 
other, ever made provision for its own dissolu- 
tion, it is obvious that whatever of this nature 
is done, must be by wrong and not by right, 
— by force, and not by law. The Constitution 
guarantees them political existence as States, 
with republican governments ; and duties,^ in- 
volving rights and powers, under the govern- 
ment. The question now is if this corporate 
existence as States may be extinguished, these 
republican governments cast off, and these duties 
and rights cancelled? If so, when and how? 
The constitutional guarantee, in the case of cor- 
porations, is just as broad as in the case of indi- 
viduals, and in neither case does it imply any 
license to violate the laws, or the rights of 
others; nor any exemption from the appropriate 
penalties, if they do either. 

§ 412. That bodies politic, though legally in- 
capable of acting outside of their charters, do in 
fact, as well as individuals, really offend in both 
respects, and are held responsible in their cor- 
porate capacity therefor, is proved by every day's 
proceedings in courts of justice. All constitu- 
tional rights exist under the Union, and as such 



LEGISLATIVE POWERS. — SPECIAL. 375 

can have no existence outside of the nation, or 
independent of it. JS'atural persons have natural 
rights, independent of the government; but ar- 
tificial persons, having only artificial existence, 
cease, and their rights likewise, with the art that 
produced them. It results from this, that, if the 
nation itself is destroyed, the Constitution abol- 
ished, and the government extinct, the States 
and all their guarantees and rights, and every 
thing else held under, or by viitue of, the Consti- 
tution, would cease with it. This is one way that 
States may get out of the Union, — by the de- 
struction of the Union itself. This way several 
of the States have lately tried without success. 

§ 413. Another way is, by their own destruc- 
tion. So far as respects actual physical de- 
struction, in both cases there is no diflSculty in 
understanding it. If the territory is sunk, and 
the government and people annihilated with it, 
it is clear there is no State left: being out of 
existence, it is, of course, out of the Union. 
But how is a State destroyed politically? If it 
is subdued, conquered, taken possession of, and 
governed by a foreign nation, it has lost its politi- 
cal existence as a State: it has become incor- 
porated with a foreign State, and of course is 
not itself a State within the Union, or anywhere 
else; unless, indeed, the foreign State should do 
with it as we do, — call it a State, when it is in 
fact only an integral part of one. 

§ 414. Again, if it becomes itself a foreign 



376 LEGISLATIVE PO WEES. — SPECIAL. 

State, by declaring and maintaining its indepen- 
dence and sovereignty as a separate State, it 
thereby loses its political existence and rights, as 
a component part of the Union, which consti- 
tuted its only claim to be a State within the 
Union. If indeed it fails, by force, to maintain 
its declaration, the result is still the same. By 
making war, it has abdicated and repudiated all 
its riofhts and duties as a State in the Union, 



'& 



and it is not at its option to resume them at its 
ow^n pleasure. Burlemaqui says war and abdi- 
cation are the means of losing sovereignty. If 
by them absolute sovereignty may be lost, cer- 
tainly any minor power short of that may be lost 
also by the same means. In the case of the 
rebel States, by becoming public enemies, their 
rights of every kind, under the government, have 
been lost by both. If they get them again, it 
must be by some process in conformity to the 
Constitution; and it will hardly be done without 
reason to believe that they will be used accord- 
ing to the Constitution. 

§ 415. The corporate rights — the State rights 
— the political rights, under the Constitution, of 
an aggregate membership of the nation, having 
been all lost and thrown away, by solemn abjura- 
tion and war, would not be likely to be revived 
or restored to the same organization, even if the 
government could be assured of their accept- 
ance, which they cannot be; because the party, 
having no corporate existence, has no power to 



LEGISLATIVE POWERS. — SPECIAL. 377 

speak or act, as an aggregate body, on that sub- 
ject, or any other. It has become absolutely 
necessary to begin anew. The territory and the 
population belong to the government, and will 
not be given up. They still form a component 
j^art of the nation. The local government, the 
State, the corporation, having abdicated and lost 
its political existence (and it would have lost it 
by the same means, if it had been a State under 
the law of nations), will necessarily be resumed 
by the government, and j^rovided for in such 
form as the Constitution may be found to war- 
rant. Those wicked husbandmen will be de- 
stroyed, and the vineyard given to others. 

§ 416. 'Nor will the government be under ob- 
ligation to give it to any body in the form and 
shape it was in before. It was originally a part 
of the national domain, and it is still theirs by 
the original right, as well as by the additional 
right of war. Its political rights are cancelled, 
and no body can claim them, l^ew States may 
be formed in such manner, with such boundaries, 
such republican governments, and such other 
political rights, as the Constitution authorizes. 
But the first requisite to any reconstruction, as 
it should be to any original construction, is a 
loyal population of sufficient physical, moral, and 
intellectual power to be adequate to the support 
and maintenance of the government of a State 
in the Union, according to the jDrinciples of the 
Constitution. Without this no new State ever 



378 LEGISLATIVE POWEES. — SPECIAL. 

ought to have been admitted, and no old State 
ought, m any form, to be resuscitated. 

§ 417. A corporation may be dissolved by 
surrender of its franchises, or by mis-user or non- 
user of them. In the first case, the surrender 
should be accepted by the government; and, in 
the other, the matter should be inquired into by 
process of quo warranto, and the forfeiture judi- 
cially declared. Besides these methods of dis- 
solution, there is obviously another, requiring 
no formality on the part of the government, 
and leaving them no option in regard to their 
action. If the corporation absolutely reject 
their franchise, abjure all its rights and duties, 
repudiate its privileges and immunities, and 
superadd actual war upon the nation, the gov- 
ernment has no course left but to conform itself 
to the facts, and carry on its own operations as 
though the franchise had never been conferred. 

§ 418. The civil divisions of the United States, 
contemplated in the Constitution, are called 
States, territories, governmental district, and 
forts, magazines, arsenals, dockyards, &;c. These 
last probably could not be formed into States, on 
account of the unsuitableness of the materials 
and their location within other States, and still 
more because a State government would be 
inconsistent with the " exclusive legislation " 
delegated to Congress; the government district 
could not, because a State government would 
not only be inconsistent with the " exclusive 



LEGISLATIVE POWERS. — SPECIAL. 379 

legislation " of Congress, but incompatible with 
the purpose of the Constitution in authorizing 
the cession. The United States had territories 
before the Constitution was made, and were un- 
der engagements with the inhabitants to form 
them into States and admit them to the Union. 
The fourth and sixth Articles of the Constitu- 
tion enabled the government to fulfil those en- 
gagements, and to govern those and any future 
territories in the mean time. 

§ 419. At the j)i'esent moment, about one half 
of the whole national domain is subject to these 
territorial governments, which differ very little 
in form from the State governments, and might 
easily be made to differ less, or not at all. Still 
their inhabitants, though citizens of the United 
States, and entitled to all the rights and privi- 
leges of such, even if they amounted to a ma- 
jority of the whole population of the country, 
could not exercise their portion of the national 
sovereignty. Nothing but a formal admission as 
a State, or an equally formal abolition of the 
difference between a State and a territory, which 
would amount to the same thing, could entitle 
the citizens inhabiting a territory to particijDate 
in the administration of the general government, 
by their suffrages for President, Senators, or 
Kepresentatives, by w^hom the whole machinery 
is moved. 

§ 420. Though the Constitution contemplates 
and authorizes these divisions, which have since 



380 LEGISLATIVE POWERS. — SPECIAL. 

been made and organized, yet, at the time of its 
adoption, the only civil divisions of the conntry 
actually organized and recognized were called 
States. Under the British government, and 
afterwards under the Revolutionary government, 
till the Declaration of Independence in 1776, 
they were called colonies. Under the laws of 
the United States, they are, for some purposes, 
called districts. But in neither case, since the 
formation of the American Union in 1774, has 
the name of the subordinate divisions had any 
tendency to indicate their actual political posi- 
tion within the Union. For this purpose they 
might at any time, and might still, as well be 
called colonies, districts, departments, or terri- 
tories, as States. Their political status is decided 
by the Constitution, not by the name. 

§ 421. A State, by the law of nations, and in 
the family of nations, is " a sovereign political 
society, occupying an extended territory, and 
forming an organic, independent, and legal 
whole." A State, by that law and in that con- 
nection, is a nation, and the equal of any other 
nation in sovereignty, independence, and indi- 
viduality. But " a State within this Union," and 
under our Constitution, is a very different thing. 
Instead of being a nation, it is only a component 
part of a nation, — and at the present time only 
a small part, — one thirty-seventh of the whole. 
It is a political society, to be sure, — that is, a 
corporation, a body politic j and, like other local 



LEGISLATIVE POWERS. — SPECIAL. 381 

corporations for the purposes of government, 
occupies more or less territory, and is legally 
organized as an integral whole. So are counties, 
cities, and towns; which are distinguished from 
States, less by the extent of their territory and 
population than by the magnitude and perma- 
nence of their rights and privileges, and the 
nature of their organizations under the govern- 
ment. Some counties are larger than some 
States, and some cities have more population 
than several States. 

§ 422. But the powers and privileges of a 
State, with a guaranteed republican government, 
depend on the Constitution of the United States ; 
and their character and extent must be decided 
under its authority. Neither nationality, sove- 
reignty, nor independence can constitute any 
part of them; because they must be adjudicated, 
in the last resort, by the tribunals of the nation. 
'No power can be national, sovereign, or inde- 
pendent wdiich depends on an extrinsic power for 
the vindication of its right. Every State officer 
is sworn to obey the Constitution of the United 
States; and every case arising under the Consti- 
tution may be decided, in the last resort, by its 
courts. 

§ 423. These civil divisions being the princi- 
pal, if not the only ones organized and in uni- 
versal use at the time, were authorized and 
employed in the administration of the general 
government. Their number may be increased, 



382 LEGISLATIVE POWERS. — SPECIAL. 

and has been ; and probably, within certain 
limits, their organization and name might be 
changed: but, substantially, the citizens of the 
States must, by the Constitution, exercise their 
portion of the national sovereignty, by suffrage, 
in the State, or that section of the nation occu- 
pying the position and character of a State, 
where they reside; and nowhere else. If they 
do not reside in such a portion of the United 
States, they can have no vote in the election of 
those officers by whom the national government 
is administered. 

§ 424. The last clause of the 3d section. Ar- 
ticle TV., is, " The Congress shall have power to 
dispose of, and make all needful rules and regu- 
lations respecting, the territory or other ]3roperty 
belonging to the United States; and nothing in 
this Constitution shall be so construed as to 
prejudice any claims of the United States or of 
any particular State." The succession of the 
new government to all the rights of property 
of the United States under the old govern- 
ment, -is here distinctly recognized, as the suc- 
cession to all their duties and obligations is 
recognized in the sixth Article. A change of 
government makes no alteration in any of these 
rights or duties, or in the laws by which they are 
to be understood and sustained. 

§ 425. At the adoption of the Constitution, 
the United States had territory and other prop- 
erty, both in possession and in action ; and this 



LEGISLATIVE POWERS. — SPECIAL. 383 

clause recognizes both, and saves the adverse 
claims in the same position they were before. 
The express power here given to Congress "to 
dispose of . . . the territory . . . and other prop- 
erty belonging to the United States," is a neces- 
sary incident of the right of property, and with 
that right itself would have resulted to the gov- 
ernment, and to this department of the govern- 
ment, if the clause had been wholly omitted. The 
additional power expressly given to Congress, "to 
make all needful rules and regulations respecting 
the territory and other pi-operty of the United 
States," has been the occasion of some discussion 
and some difference of opinion. It is not under- 
stood, that the requisite power to manage and 
appropriate the subject, as propert}^ has been 
denied to be fully included under this grant, if 
any such grant can be held to be necessary or 
useful. 

§ 426. But a much more extended power, for 
the purposes of civil and political government, 
has been claimed by some as embraced in this 
grant. Perhaps the terms are broad enough to 
warrant such a construction, if there was any 
adequate reason for adopting it, or any imagin- 
able purpose to be answered by supposing them 
ever to have been used with such an intent. 
"With or without this construction, the whole 
clause is sensible, correct, and just, in all its pro- 
visions and arrangements; and yet it is difficult 
to see in what one particular the matters therein 



384 LEGISLATIVE POWERS. — SPECIAL. 

contained, or any of them, are placed in any 
different relations to each other, or to any thing 
else, than they would have occupied if no such 
clause had been in the Constitution. 

§ 427. As to civil government, the territory 
mentioned in the clause, which was the only one 
then belonging to the United States, and which 
now constitutes five States in the Union, was a 
23art of the United States before it became tech- 
nically a territory, and certainly was not less so 
afterwards. The Constitution announces itself 
as ordained and established " for the United 
States," the whole country and every part of it; 
and that not merely as it was then, but as it might 
legally become at any time afterwards. It has 
been held to authorize accessions in divers ways ; 
and they have actually been made, by the right 
of war, by purchase, treaty, and simple legisla- 
tion. In all these cases, the additions are as 
much a part of the United States as the original 
territory, which made the first assumption and 
declaration of nationality.^ 

§ 428. If the government under the Constitu- 
tion is the " firm national government " which the 
people demanded, adequate to the " preservation 
of the Union " and all the " exigencies of gov- 
ernment, — competent to govern the whole coun- 
try, — it is of course competent to govern every 
part of it; and most especially is it incumbent 
on it to govern that portion of the nation for 

1 Loughborough v. Blake, 5 Wheat. Rep. 



LEGISLATIVE POWERS. — SPECIAL. 385 

which the Constitution has recognized no subor- 
dinate or ancillary State government for minor 
occasions, but left entirely dependent on tile ex- 
clusive legislation of Congress. The govern- 
ment derives its existence, and all its rights, 
duties, and powers, from the Constitution; and, 
wherever these are exercised, they are in subor- 
dination to its principles and bound by its re- 
strictions. They have the same supreme power 
over every portion of the country, and can exer- 
cise no other. Whatever rules individual dis- 
cretion or local institutions adequately supply, 
the supreme government is not called on to 
provide. But, where these are wanting, the 
supreme government is the only resort. 

§ 429. This constitutes the difference between 
the action of the government over the States, 
and those other portions of the country where, 
in default of State governments, the general gov- 
ernment is necessarily exclusive, though no more 
supreme. The Constitution expressly transfers 
the property and the engagements of the United 
States to the new government; and it was com- 
plained of by its opponents, for the want of an 
express provision securing the enjoyment of the 
common law.^ But was it not a work of superer- 
ogation to do either? The United States, pre- 
vious to the adoption of the Constitution, had few 
general statutes, except those which grew out of 
the exigencies of the war, and expired with it. 

1 See 2 American Museum, 434 ; 1 Story's Com., 275, and 3 do., 506. 

25 



386 LEGISLATIVE PO WEES. — SPECIAL. 

There were a few, however, that never were re- 
pealed, or otherwise abrogated or altered, either 
by the changes of the government or by any 
action of the government itself. 

§ 430. During the early Administrations of 
the present government, the Acts, Resolves, or 
Ordinances of the Revolutionary and Confedera- 
tion Congress are often alluded to, and brought 
into discussion in Congress, as laws still in force. 
In some instances, they are repealed or super- 
seded. In others they are suspended or dis- 
pensed with in particular cases. In more they 
are enforced or adhered to, as the existing rule 
of decision, or law of the case, binding on the 
parties. These questions often, perhaps gene- 
rally, arose out of the statutes of limitation, ter- 
minating, by lapse of time, certain claims against 
the government. But they all assume the force 
and validity of the statutes, as governing the 
case in hand; and thus recognize the continu- 
ance and identity of the State, in relation to its 
laws as well as to its rights and duties.^ By an 
Act passed Aug. 5, 1789, it is enacted, " That 
the President of the United States be, and he 
hereby is, empowered to nominate, and by and 
with the advice and consent of the Senate to 
appoint, such person or persons as he may think 
proj)er, for supplying any vacancy that now is, or 
may hereafter take place, in the Board of Com- 

1 See the early volumes of the Annals of Congress, and Benton's 
Abridgment of Debates, 2Mssim. 



LEGISLATIVE POWERS. — SPECIAL. 387 

missioners established by an Ordinance of the 
late Congress, of the 7th of May, 1787." ^ 

§ 431. The Constitution neither cancels the 
rights, discharges the duties, nor repeals the laws 
of the United States, as they existed when it was 
adopted, any further than such rights, duties, or 
laws are inconsistent or incompatible with its 
own provisions. Among these laws, the Decla- 
ration of Independence and the Ordinance of 
1787 have already been mentioned. The Decla- 
ration of Rights, by the first Congress, Oct. 14, 
1774, is scarcely less important. It asserts, 
among other things, the right of all " the inhabi- 
tants of the English colonies in JN^orth America " 
. . . " to the common law of England;" and 
" that the foundation of . . . liberty, and of all 
free government, is a right in the people to par- 
ticipate in their legislative council." This, too, 
has never been repealed or become obsolete. 
The right of the people to choose Representa- 
tives to the national and State legislatures is 
actually embodied in the Constitution ; and it 
not only contains nothing tending to abrogate 
the common law, but, in more than one instance, 
directly refers to it as an existing code, valid and 
authoritative, at least for some purposes. 

§ 432. Several of the constitutional provisions 
would be wholly unmeaning without it ; and 
others must be construed by it, and cannot be 

1 See the Act at large in vol. ii. of the " Laws of the United States," 
edition of 1815, p. 32 ; and Ordinance in the first volume, chap. 40. 



388 LEGISLATIVE POWERS. — SPECIAL. 

understood independent of it. The distinction 
between " cases in law and equity," which the 
constitution recognizes (Article III., section 2), 
relates directly to the difference between the 
principles of the two codes of common law and 
equity, by which actions in judicial tribunals are 
classified and decided.-^ The seventh Amend- 
ment secures the right of a trial by jury "in 
suits at common law," and prohibits their re-ex- 
amination otherwise " than according to the rules 
of the common law." Is it nevertheless true that 
we have no common law ? What is the writ of 
habeas corpus?^ Its substance, — its form? To 
what does it apply? What is its object? Whose 
is the privilege of it? What rigJit does it restore ; 
what wrong does it redress ? Who is entitled 
to the right, and by what law? and how^ does 
the writ restore it? The answer to these ques- 
tions is from the common law, and they cannot 
be answered without it. If there is no common 
law, this clause of the Constitution is inexplica- 
ble, — it, in fact, means nothing. 

§ 433. If a change of government neither 
changes the laws, nor the rights and duties 
under the laws, how is it that the people of the 
United States have lost their right to the law, 
which their fathers brought with them to this 
land, which they used and • approved, and trans- 
mitted to their children ; which their children 
and their successors claimed as their birthright, 

1 3 Story's Com., 506. 2 Article I., section 9. 



LEGISLATIVE POWERS. — SPECIAL. 389 

and practised, under all the forms and changes 
of government through which they have passed; 
and which the present generation continue to use 
and practise, almost to the exclusion of every 
other? Yet it is vexata questio how far the com- 
mon law, as used and approved in this country 
before the Revolution, through the Revolution, 
before the Constitution, and since the Constitu- 
tion, may still be administered by the courts of 
the United States as a part of the law of the 
land.i 

1 Robinson v. Campbell, 3 Wheat., 223 ; Cox and Dick v. United States, 
6 Peters' R., 203. 



CHAPTEK XXy. 

LEGISLATIVE POWERS. — SPECIAL. 

Amendments. 

§ 434. The fifth Article, on the mode of amend- 
ing the Constitution, is the last one that expressly 
confers special and specific powers on Congress 
for any purpose whatever. It is as follows : " The 
Congress, whenever two-thirds of both Houses 
shall deem it necessary, shall propose amendments 
to this Constitution; or, on the application of the 
legislatures of two-thirds of the several States, 
shall call a convention for proposing amend- 
ments, which in either case shall be valid, to all 
intents and purposes, as ]3art of this Constitu- 
tion, when ratified by the legislatures of three- 
fourths of the sevei-al States, or by conventions 
in three-fourths thereof, as the one or the other 
mode of ratification may be proposed by the 
Congress ; provided that no amendment which 
may be made prior to the year one thousand 
eight hundred and eight, shall in any manner 
affect the first and fourth clauses in the ninth 
section of the first Article; and that no State, 

[390] 



LEGISLATIVE POWERS. — SPECIAL. 391 

without its consent, shall be deprived of its equal 
suftVage in the Senate." 

§ 435. Here are three distinct powers con- 
ferred on Congress, and neither of them proba- 
bly involved in the legislative portion of any of 
the general powers of the government. By the 
first, they may, by a two-thirds vote, themselves 
propose amendments to the Constitution. This 
has been held to be independent of the veto 
power of the President. A two-thirds vote in 
each House is all that w^ould be required if the 
veto was interposed, and this is required without 
it. By the second, they may, on the application 
of the legislatures of two-thirds of the States, 
call a convention for proposing amendments. 
This power has never been used; and, of course, 
it has never been decided practically whether 
the "call" shall be presented to the President 
for his approval or not. The convention must 
probably be a convention of the people of the 
United States, by delegates chosen or appointed 
in each State: but in w^hat proportion; when, 
how, and by whom chosen or appointed; where 
and when assembled; and how organized, gov- 
erned, and restricted, — with other necessary 
preliminaries, must be settled by the power 
authorized to make the " call," for there is no 
other. By the third. Congress is authorized to 
prescribe the mode of ratification of the amend- 
ments projDosed either by themselves or the con- 
vention by them called. 



392 LEGISLATIVE POWERS. — SPECIAL. 

§ 436. This may be done by the legislatures of 
the several States, or by State conventions elected 
and held by virtue of the requisition of Con- 
gress, and in the manner by them directed. The 
wisdom, the utility, and even the necessity, of 
provisions for amending the Constitution have 
never been denied or doubted. But the second 
of those mentioned in this Article has never 
been tried, and it may be long before it is so. 
A simultaneous movement, by twenty-five or 
more different State legislatures, each composed 
of at least two distinct and independent bodies 
of men, in favor of a general convention of the 
people for proposing alterations of the funda- 
mental law, without limit and without landmark, 
is a measure not likely to be resorted to for 
any other purpose than to destroy the govern- 
ment. Whenever so large a proportion of the 
American people become imbued with that pur- 
pose, it is safe to predict that they will march to 
their object by a more direct route than by pro- 
curing an amendment of the Constitution in this 
circuitous manner. 

§ 437. The other method has been resorted to 
several times, at different periods of" our history. 
The first time was at the first session of the first 
Congress. They proposed an addition of twelve 
Articles, in the nature of a bill of rights, most 
of them copied or modified from English or 
American models, for the purpose of conciliating 
a large class of citizens, who had been more or 



LEGISLATIVE POWERS. — SPECIAL. 393 

less dissatisfied with the Constitution on account 
of its destitution of such a department. The 
deficiency had been most ably and elaborately 
defended by the friends of the Constitution, in 
the spoken and written debates on the subject, 
by reasoning which Judge Story pronounces 
had " much intrinsic force," though not " conclu- 
sive or satisfactory." ^ He adds in a note, " It had 
. . . extraordinary influence on the Convention; 
for, uj)on a motion being made to appoint a com- 
mittee to prejjare a bill of rights, the proposition 
was uisTANiMOUSLY rejected. — Journal,^ 369." 

§ 438. But this view is altogether illusory. 
The vote was taken on the 12th day of Septem- 
ber, the last of the many times the subject came 
before the Convention, and just three days before 
the finished Constitution went into the hands of 
the engrossers. In his history of the Debates, 
Mr. Madison says the vote stood: IS^ew Hamp- 
shire, Connecticut, K^ew Jersey, Pennsylvania, 
and Delaware, ay; Maryland, Virginia, ^orth 
Carolina, South Carolina, and Georgia, no, — 
five ISTorthern against the five Southern States, 
Massachusetts being absent.^ The question was 
thus lost. As the South would not consent to a 
bill of rights, the IsTorth, as is not unusual on 
such occasions, made a virtue of necessity, and 
permitted the oflRcial record to be made as it 
stands. But a bill of rights was excluded by 
slavery, and~ slavery alone. 

1 3 Com., 716. 2 3 Madison Papers in loc. 



394 LEGISLATIVE POWERS. — SPECIAL. 

§ 439. This was aftei'wards distinctly avowed 
to the South Carolinians by General Charles 
Cotesworth Pinckney. He said, " Such bills 
generally begin with declaring that all men are 
by nature born free. 'Now, we should make that 
declaration with a very bad grace when a large 
part of our property consists in men who are 
actually born slaves." -^ Amid all the sophistry 
that was wasted to reconcile the people of the 
North to the omission of a bill of rights, and to 
obliterate the fact that it was through the influ- 
ence of slavery, here is a plain and honest state- 
ment of the exact truth; and it is the only 
instance where the truth on this subject was 
boldly and exjDlicitly stated, responsibly vouched, 
and placed on record, so that to this day it can 
be seen and produced in evidence. 

§ 440. Two of the proposed Articles^ were 

1 4 Elliot's Debates, 316. 

2 The second of the original series was in these words : " No law 
varying the compensation for the services of the Senators and Representatives shall 
take effect until an election of Representatives shall have intervened." When 
these were proposed, the Union consisted of eleven States only. Three of 
the eleven — viz., Massachusetts, Connecticut, and Georgia — have never 
acted on any of them. Before the others had all acted, the number of 
States had increased to fourteen, by the accession of Rhode Island, North 
Carolina, and Vermont, so that eleven, instead of nine, were required for 
their adoption. At this juncture, and before the admission of Kentucky 
increased the number to fifteen, it was found that eleven States had 
adopted the ten Amendments, leaving out the other two. The one above 
recited was negatived by Rhode Island, New York, New Jersey, and 
Pennsylvania, while agreeing to the rest ; and only New Hampshu-e, 
Vermont, Delaware, Maryland, Virginia, North Carolina, and South Caro- 
lina agreed to this with the other ten. Thus seven States only have 
ratified this Amendment, and it has not since been taken up for conside- 
ration or re-consideration by any of the other States. 



LEGISLATIVE POWERS — SPECIAL. 395 

rejected; but the other ten were ratified by the 
legishxtures of three-fourths of the States, and 
constitute the first ten of the Amendments now 
maldng a j^art of the Constitution. In these, 
certain particular rights are plainly declared or 
recog'nized, as natural, legal, and subsisting 
rights of the peojjle, and so made their consti- 
tutional rights. They become a part of the 
supreme law of the land, and so bind the govern- 
ment, and all subordinate governments, — every 
body, in fact, owing allegiance to the Constitu- 
tion.^ 

§ 441. The opinion of the Court, per Mr. 
Chief Justice Spencer, says, " The Article in 
question [fifth Amendment] does extend to all 
judicial tribunals in the United States, whether 
constituted by the Congress of the United States 
or the States individually. The provision is 
general in its nature and unrestricted in its 
terms; and the sixth Article of the Constitu- 
tion declares, that that Constitution shall be 
the supreme law of the land, and the judges in 
every State shall be bound thereby, any thing 
in the constitution or laws of any State to 
the contrary notwithstanding. These general 
and comprehensive expressions extend the pro- 
visions of the Constitution of the United States 
to every Article which is not confined, by the 
subject-matter, to the national government, and 
is equally applicable to the States."^ — " The 

1 See People v. Goodwin, 18 John R., 187. '^ Ibid. 



398 LEGISLATIVE POWERS. — SPECIAL. 

legislature of this State is as much bound by 
this [fifth Amendment] provision in the Consti- 
tution of the United States, as they would be 
were it contained in our own Constitution." ^ In 
the case of Houston v. Moor, 5 Wheat. Rep., Mr. 
Justice Johnson said, " In cases affecting life or 
member, there is [in the fifth Amendment] an 
express restraint upon the exercise of the pun- 
ishing power. But it is a restriction which 
operates equally upon both [i.e., national and 
State] governments." Mr. Chief Justice Mar- 
shall said,^ " The Constitution of the United 
States was made for the whole people of the 
Union, and is equally binding upon all the courts 
and all the citizens." Mr. Chief Justice Taney 
said,^ " The Constitution of the United States, 
and every Article and clause in it, is a part of 
the law of every State in the Union, and is the 
paramount law." * 

§ 442. These rights are : — 

1. The free exercise of religion, without any 
legal establishment thereof. 

2. The freedom of speech and of the press. 

3. The right to assemble and petition the gov- 
ernment.^ 

4. The right to keep and bear arms.^ 

1 Case of Dart. Coll., p. 59, per Jer. Mason, arguendo. 

2 In Farmers' & Mechanics' Bank, v. Smith, 6 Wheat. Rep., 131. 

3 Prigg's Case, 16 Peters' Rep., 628. 

4 e. con., see Barker v. the People, 3 Cowen's R., 686; James v. Com- 
monwealth, 12th Sergeant & Rawle's R., 220 ; Barron v. Baltimore, 
7 Peters' Rep., 248. ^ In Article I. ^ In Article II. 



LEGISLATIVE POWEES. — SPECIAL. 397 

5. To exemption from having soldiers quar- 
tered in his house, unless by law in time of 
war.^^ 

6. To security from unreasonable searches and 
seizures and illegal warrants.^ 

7. To exemption from trial for infamous crime, 
unless on indictment by a grand jury, or in army 
or navy. 

8. To exemption from more than one trial for 
the same offence. 

9. To exemption from being a witness against 
himself in a criminal case. 

10. To life, liberty, and property, till deprived 
by due process of law. 

11. To just compensation for property taken 
for public use.^ 

12. In criminal cases, to distinct accusation, 
speedy public trial, impartial jury of the State 
where committed, witness personally present in 
Court, his own witnesses and counsel.* 

13. To trial by jury in civil suits at common- 
law.^ 

14. To exemption from excessive bail or fines, 
and cruel or unusual punishments.^ 

15. The mention of particular rights not to 
disparage others not mentioned.^ 

16. A reserved right to all powers not dele- 
gated to the State or general governments.^ 

1 Article III. 2 in Article IV. » In Article V. 

4 In Article VI. 5 in Article VII. 6 Jq Article VIII. 

T Article IX. 8 in Article X. 



398 LEGISLATIVE POWERS. — SPECIAL. 

§ 443. This mode of Amendment was next 
resorted to successfully, by the third Congress, 
and resulted in the eleventh Amendment. It 
effectually negatives all right in any individual, 
whether citizen of another 6tate or alien, to sue a 
State of the Union, before a court of the United 
States, for any cause whatever. Citizens of the 
United States, not being citizens of any particu- 
lar State other than the State sued, are not 
expressly mentioned. It unquestionably weakens 
the .power of the government to that extent. It 
revokes so much of the original purpose of the 
people "to establish justice," as consists in the 
ability of the judiciary to do justice at the suit 
of the individuals mentioned, though suffering 
injustice from any State of this Union. 

§ 444. The twelfth Amendment was proposed 
at the first session of the eighth Congress, and 
approved by the required majority of the State 
legislatures in 1804. By requiring the electors 
of President and Vice-President to designate 
on their ballots for which office each candidate 
is voted for, it takes away one of the contin- 
gencies on which an election of President might 
devolve on the House of Representatives. 

§ 445. An unsuccessful attemjDt to alter the 
Constitution was made at the second session of 
the thirteenth Congress. It failed for the want 
of the requisite number of State legislatures to 
support it. 

JN^ear the close of the last session of the thirty- 



^LEGISLATIVE POWERS. — SPECIAL. 399 

sixth Congress, in February and March, 1861, 
after, seven of the Southern States had j^assed 
their secession Ordinances, and their Senators 
and Repi-esentatives had taken formal leave of 
Congress, the following amendment was passed 
by a two-thirds vote in each House, viz., " l^o 
amendment shall be made to the Constitution 
which will authorize or give to Congress the 
2:)0wer to abolish or interfere, within any State, 
with the domestic institutions thereof, including 
that of persons held to labor or service by the 
laws of said State." Two days afterwards, 
President Lincoln, in his Inaugural Address, 
said, "that, holding such a provision now to be 
implied constitutional law, I have no objections 
to its being made express and irrevocable." But, 
as it was not wanted by anybody for any other 
purpose than to pacify the Southern States, and 
as they refused to- be jDacified by it, it was never 
taken up or acted upon by the legislature of any 
State, and so fortunately failed to encumber and 
disgrace the Constitution. 

§ 446. The thirteenth Amendment, abjuring 
slavery throughout the United States, was pro- 
posed b}^ the thirty-eighth Congress at their last 
session, Jan. 31, 1865. Thirty-six States had 
then been admitted to the Union, eleven of which 
were at that time carrying on a civil war in 
rebellion against the government. Of the remain- 
ing twenty-five States, twenty had adopted it in 
five months (June 30). Three others, Oregon, 



400 LEGISLATIVE POWERS. — SPECIAL. 

California, and ISTew Jersey, adopted it after- 
wards, and within a year from the time it was pro- 
posed, leaving only two of the twenty-five, viz., 
Delaware and Kentucky, who objected. On the 
18th of December, however, and before Oregon, 
California, and 'New Jersey had adopted it, Mr. 
Secretary Seward issued his official proclamation, 
announcing that twenty-seven States, or three- 
fourths of the whole number admitted, had 
adopted it, and it was therefore a part of the 
Constitution. To make this out, he had to in- 
clude seven of the States in rebellion, viz., Yir- 
ginia, Louisiana, Tennessee, Arkansas, ISTorth 
Carolina, South Carolina, and Georgia. If these 
States had then no organized government under 
the Constitution, so as to be capable of acting 
for their people and legally binding them by 
their action, the Amendment could not have been 
legally ratified till twenty-one or more of those 
States which had such constitutional govern- 
ments had actually ratified it as the Constitution 
requires. 

§ 4A7. "We have heretofore seen that the Con- 
stitution, as it originally stood, never authorized 
slavery or property in man, in any form or under 
any name; and that the personal rights of the 
citizens, whether natural-born or naturalized, 
recognized and covered by it, are altogether in- 
compatible with the existence of any such rela- 
tion among the people. So that the only legal 
operation of this Amendment was to re-assure 



LEGISLATIVE POWERS. — SPECIAL. ^01 

the original Constitution in this respect, and to 
negative and countermand, in express terms, the 
system of violence and injustice that had been 
illegally and studiously fostered and extended, 
under a false construction and maladministration 
of an instrument adapted and intended to effect 
its decline and extinction. The 2d section of the 
Amendment does a similar work of supereroga- 
tion, by authorizing Congress " to enforce " this 
particular provision, when they had abundant 
authority for executing the whole Constitution 
without it. 

§ 448. The fourteenth Amendment was pro- 
posed in June, 1866, by the thirty-ninth Congress 
at their first session, by a vote of three-fourths 
of the Senate ,and more than that of the House, 
and is now, 1866, in the process of adoption by 
the State legislatures.^ In respect to the powers 
of the government, it is of the same general 
character as the last. It re-affirms some pre-ex- 
isting powers, but adds no new ones. It makes 
some wholesome provisions which Congress were 
fully authorized to have made themselves, but 
could not have prevented a future Congress from 
unmaking. The first section is in these words : 
" All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the States 

1 It has since been adopted by more than three-fourths of the twenty- 
seven States, now (1867) actually composing, by participating in, the gov- 
ernment. 

26 



402 LEGISLATIVE PO WEES. — SPECIAL. 

wherein they reside. "No State shall make or 
enforce any law which shall abridge the privi- 
leges or immunities of citizens of the United 
States ; nor shall any State dejDrive any person of 
life, liberty, or property without due process 
of law, or deny to any person within its juris- 
diction the equal protection of the laws." This 
will scarcely be claimed by anybody to delegate 
any thing new to the government, or to prohibit 
the States from doing any thing which otherwise 
they might rightfully do. 

§ 449. The 2d section begins, "Representa- 
tives shall be apportioned among the several 
States according to their respective numbers, 
counting the whole number of persons in each 
State, excluding Indians not tax^d;" almost in 
the exact words of the 2d section of Article I., 
leaving out those which discriminate between 
such as are counted as integers and as fractions. 
By a different collocation of the words, however, 
and their connections, it will bear upon some 
questions that have been made upon the origi- 
nal. Who are the "^ersoiis in each State'''' to 
be counted ? Citizens, inhabitants, residents — 
temporary or permanent, strangers, aliens, In- 
diai;^, &c. ? " Indians not taxed " are now alto- 
gether excluded ; although before it was by some 
considered doubtful whether they were excluded 
only from the first class. This total exclusion is 
compatible with the preceding section, only on 
the ground that the Constitution has made them 



LEGISLATIVE POWERS. — SPECIAL. 403 

aliens, and so not "subject to the jurisdiction" of 
the United States, otherwise than aUens by tem- 
porary residence ; for otherwise they are, by that 
section and by birthright, actual " citizens of the 
United States, and of the States wherein they 
reside." 

§ 450. If Indians, who are natural-born citi- 
zens of the country, are excluded from the basis 
of representation by an alienage created by a 
legal and artificial denaturalization, a fortiori 
natural-born aliens should be excluded also. 
Certaiuly, persons who are at the time actual 
citizens of other States in the Union cannot be 
included; and, for much stronger reasons, per- 
sons who are citizens of foreign States should 
not. These inferences are strengthened by the 
provision afterwards made for reducing the basis 
of representation, in case of an unlawful denial 
of the right of voting. " The whole number of 
persons in each State " cannot mean everybody 
on the soil at the particular time, nor exclude 
everybody who may happen not to be on it at 
the same time, and of course should be authori- 
tatively construed by the law-making power. 

§ 451. The residue of the 2d section is, " But 
whenever the right to vote at any election for 
electors of President and Yice-President of the 
United States, Representatives in Congress, ex- 
ecutive and judicial officers, or the members of 
the legislature thereof, is denied to any of the 
male inhabitants of a State, being twenty-one 



404: LEGISLATIVE PO WEES. — SPECIAL. 

years of age and citizens of the United States, 
or in any way abridged, except for participation 
in rebellion or other crime, the basis of repre- 
sentation therein shall be reduced in the propor- 
tion which the number of such male citizens 
shall bear to the whole number of male citizens 
twenty-one years of age in such State." This 
distinctly recognizes an absolute right in certain 
citizens to vote for certain national and State 
oflScers at any election of those otficers. But 
this is no new thing in the country or in our 
Constitution. 

§ 452. The fathers of our Revolution, when 
they laid the foundations of our nationality, in 
their first Declaration of Rights, in Congress 
assembled, Oct. 14, 1774, solemnly declared, that 
" by the immutable laws of ]!*^ature . . . the 
foundation of . . . liberty, and of all free gov- 
ernment, is a right in the people to participate 
in their legislative council." In exact accor- 
dance with this fundamental principle of repub- 
licanism, it is provided in our Constitution, by 
Article I., section 2, that " Representatives shall 
be . . . chosen ... by the people [citizens] of 
the several States." If they must be chosen 
by the citizens, then the citizens have a right to 
choose them, and must choose them; and who 
has a right to say that any citizens shall not, 
and that any but citizens shall, choose them?^ 

1 This has no reference to forfeiture. A man may forfeit his life, 
and of course any other right. Nor does it refer to the necessary 



LEGISLATIVE POWERS. — SPECIAL. 405 

§ 453. The same section 2 declares that the 
*^ electors of the most numerous branch of the 
State legislature " must have the same qualifica- 
tions, and bj necessary implication must be the 
same citizens. For if the qualifications of the 
electors of Representatives in Congress are 
citizenship and residence only, being " people 
of the several States " respectively, and fix^d 
to that by the Constitution, it follows con- 
clusively that " the qualifications requisite for 
electors of the most numerous branch of the 
State legislature " must be precisely the same 
citizenship and residence, and no other, or the 
two cannot be alike. Besides, the Amend- 
ment itself expressly recognizes " the right to 
vote at any election" of certain oflScers, State 
as well as national, as appertaining to every 
male citizen of twenty-one years of age, and 
which cannot be rightfully denied or abridged, 
except for rebellion or other crime. This shows 
that the word " qualifications," as here used, has 
no reference to any limitation of the constitu- 
tional right of the citizen to the suffi-age; but 
only to such regulations of the time, place, and 
circumstances as may be judged necessary for 
the effectual security and beneficial enjoyment 
of the right. 

§ 454. The next idea is, that if any State shall 

guardianship which God has provided for the infant and imbecile por- 
tion of the race. The right of suffrage, as a part of the right of 
citizenship, has always been recognized before the Constitution and 
under it. 



406 LEGISLATIVE POWERS. — SPECIAL. 

unlawfully deny or abridge this constitutional 
right of the citizens, they shall lose a propor- 
tionable part of their delegation. Here is cer- 
tainly no increase of power in the government. 
It was their duty before to execute the Consti- 
tution; and if a State should not allow their 
Representatives to be "chosen by the people," 
Recording to the Constitution, they could not 
rightfully be admitted to their seats; and the 
States so offending were, and still are, liable to 
lose their whole delegation instead of only a part 
of it. It will be noted, also, that the reduction of 
the basis is to be in the proportion of the ille- 
gally disfranchised voters to the whole of the 
legal voters; justly presuming that all the adult 
males represent an equal proportion of females 
and minors. But if the basis might include 
aliens or others who are not citizens, they would 
be represented in full, though one half, three- 
quarters, or any other portion short of the whole 
of the legal voters, should be actually de^^rived; 
and thus the favored few of the citizens would 
not only choose their own Representatives, but 
also Representatives for such aliens or others as 
might be so included in the basis ; so that their 
relative power as citizens would be increased, 
rather than diminished, by the reduction of the 
basis. 

§ 4:55. But this remedy, by diminishing the 
basis of representation, is cumulative only, — an 
addition to, and not a substitute for, any other 



LEGISLATIVE POWERS. — SPECIAL. 407 

remedy that Congress might have applied, and 
may still apply, for an injurious and unwarranta- 
ble interference with the elective franchise of 
citizens, by the State governments or others, in- 
dej)endent of this Amendment. This Amendment 
enacts a new remedy that Congress could not 
have enacted without it, because it interferes 
with the constitutional basis of representation; 
but it neither increases nor diminishes the power 
of the law-making department of the govern- 
ment, "to make all laws necessary and proper 
for carrying into execution," — asserting, pro- 
tecting, and defending " the right to vote at any 
election," here, as elsewhere in the Constitution, 
expressly recognized and admitted to appertain 
to every male citizen of twenty-one years of 
age, whenever it may be unlawfully "denied" 
or " abridged," neither of w^hich can be lawfully 
done, "except for participation in rebellion or 
other crime." 

§ 456. The 3d section is, " ^N'o person shall 
be a Senator or Kepresentative in Congress, or 
elector of President and Vice-President, or hold 
any office, civil or military, under the United 
States, or under any State, who, having pre- 
viously taken an oath as a member of Congress, 
or as an officer of the United States, or as a 
member of any State legislature, or as an execu- 
tive or judicial officer of any State, to support 
the Constitution of the United States, shall have 
engaged in insurrection or rebellion against the 



408 LEGISLATIVE POWERS. — SPECIAL. 

same, or given aid or comfort to the enemies 
thereof; but Congress may, by a vote of two- 
thirds of each House, remove such disability." 
The offences here described are all of them 
treason, with the aggravation of perjury, which 
Congress was expressly authorized to punish, 
in any manner they pleased, by Article III., sec- 
tion 3. 

§ 457. The 4th section, so far as it recognizes 
" the validity of the public debt of the United 
States," and the invalidity of " any debt or ob- 
ligation incurred in aid of insurrection or re- 
bellion," certainly makes no alteration in the 
previous law of the land. So far as it renders 
"illegal and void". . . "any claim for the loss 
or emancipation of any slave," it is restrictive, 
and a diminution of the power of the govern- 
ment as well as of the States. The fifth sec- 
tion says, " The Congress shall have power to 
enforce, by appropriate legislation, the provisions 
of this Article ; " which of course they have by 
the original Constitution, as soon as it becomes a 
part of that Constitution. 

§ 458. Thus it will appear, by a minute ana- 
lysis of this fourteenth Amendment, that it con- 
tains no augmentation of the powers of the 
government. But it is especially incumbent on 
the American people to watch narrowly every 
amendment w^hich may be proposed, and see that 
there lurks not, under some plausible coverings 
any latent mischief which may sap and undermine 



LEGISLATIVE POWERS. — SPECIAL. 409 

the foundation of some efficient suj)port to the 
constitutional fabric which it cost our fathers 
so much to raise, and their children so much to 
defend. 

§ 459. There has been some question made as 
to the extent of this power of amendment under 
the fifth Article of the Constitution. It contains 
but two express restrictions; one of which has 
become obsolete, and the other is, " that no State, 
without its consent, shall be deprived of its 
equal suffrage in the Senate." While the Arti- 
cle declares that amendments proposed and rati- 
fied in the manner therein prescribed " shall be 
valid, to all intents and purposes, as part of this 
Constitution," it will be difficult to establish any 
restriction beyond what is written. 

From this resume of the Amendments hereto- 
fore made, it will readily appear that no addition 
has been made thei'eby to the powers of the gov- 
ernment. It will also appear that those powers 
have sustained very little damage from such re- 
strictions and limitations as those Amendments 
contain. 



CHAPTER XXYI. 

LEGISLATIVE POWEES. 
Restrictions. 

§ 460. HAvrNTG thus briefly examined the legis- 
lative powers of the government as vested in 
Congress, by general and special delegations, 
express and implied, we come next to consider 
the limitations and qualifications under which 
these powers are granted in the Constitution. 
1st, It has already been remarked that the terms 
by which the legislative power is "vested in 
Congress " (section 1) , are, to a certain extent, 
restrictive ah initio. "All legislative powers 
herein granted " excludes those not herein grant- 
ed. A government, or a power to govern, in- 
cludes a power to make and execute laws; and a 
limited government must make its laws within 
its limitations. The law-making department of 
such a government cannot extend beyond the 
purposes and objects to which the government is 
restricted. It must govern in the prescribed 
manner; and all the legislative, executive, and 
judicial power requisite for this is necessarily 
"herein granted," and no other is. 

[410] 



LEGISLATIVE POWERS. 411 

§ 461. So " all the legislative powers herein 
granted " are only the law-making power re- 
quired for administering the government and 
executing the Constitution. This is what it 
would necessarily be, independent of any further 
constitutional definition. But the 8th section 
gives it expressly the same definition almost in 
the same terms, — " The Congress shall have 
power ... to make all laws which shall be ne- 
cessary and propel* for carrying into execution 
the foregoing 2:>owers, and all other powers vested 
by this Constitution in the government of the 
United States, or in any department or officer 
thereof." 

§ 462. 2d, In regard to taxation, by the third 
clause, 2d section. Article I., " direct taxes," 
which have been construed to mean taxes on 
buildings, land, and persons, " shall be appor- 
tioned among the several States . . . according 
to their respective numbers ; " and by clause 1, 
section 8, " duties, imposts, and excises," which 
are indirect taxes, " shall be uniform throughout 
the United States." The exactions of the gov- 
ernment upon the people for revenue are all of 
them taxes, and are direct or indirect. All direct 
taxes must be laid by the rule of apportionment ; 
and all "duties, imposts, and excises" must be 
laid by the rule of uniformity. The line of dis- 
tinction between direct and indirect taxes has 
not been very sharply drawn. But, if there are 
any indirect taxes not falling under the head of 



412 LEGISLATIVE POWERS. 

duties, imposts, or excises, there is no constitu- 
tional difficulty in their being laid by either rule, 
or by any other, consistent with justice. 

§ 463. Since the alteration of the Constitution 
making every man a unit in the enumeration of 
the census, the only substantial difference is, 
that, by the first method, taxes are to be laid or 
distributed among the States in proportion to 
their population; and, by the second, they are 
laid upon individuals, without reference to their 
locality, according to the use and distribution of 
different kinds of property. The first supposes, 
that the quantity and value of the property so 
taxed is everywhere according to the number of 
the people ; or, in other words, that every aggre- 
gate community has a similar amount of that 
kind of property in proportion to its number of 
people. The other supposes, that every man 
chooses for himself the investment and appro- 
priation of his property, and so becomes his own 
assessor, by selecting the kind of property he 
will hold, and the use he will make of it. The 
theory of the first, or rule of apportionment, is 
so manifestly erroneous, that it was seldom re- 
sorted to before the adoption of the thirteenth 
Amendment, the want of which was the sole 
occasion of the rule. It may now be presumed, 
that the rule itself, as a practical one for the 
levying of any kind of taxes, will soon become 
entirely obsolete. 

• § 464. By the fifth clause, section 9, " l^o tax 



LEGISLATIVE POWERS. 413 

or duty shall be laid on articles exported from 
any State." This has been understood to pro- 
hibit all duties on exports; but it has been con- 
tended that it only applies to discriminations 
against "any State," in distinction from others. 
Judge Story says, speaking of this clause, in 
connection with the next sentence, respecting the 
prohibition of any j^reference of ports of one 
State over those of another, &c., " The obvious 
object of these provisions is to prevent any 
possibility of applying the power to lay taxes or 
regulate commerce injuriously to the interests 
of any one State, so as to favor or aid another. 
If Congress were allowed to lay a duty on ex- 
ports from any one State, it might unreasonably 
injure, or even destroy, the staple productions 
or common articles of that State." ^ 

§ 465. If this was the whole object, it may well 
be effected without construing the clause to 
intend a total prohibition of all taxation on ex- 
ports; and their combination and juxtaposition 
in this clause has been used as an argument to 
prove that such was the whole intent of the 
clause, and should be held to be its whole effect. 
The original wording of the clause was " on ar- 
ticles exported from the States ; " which were 
afterwards altered to the present reading. But 
no legislative or judicial exposition of the phrase 
has been made. " Appropriations of money," 

1 3 Com., 469; Rawle on the Constitution, 115; North- American 
Review, July, 1865. 



414 LEGISLATIVE POWERS. 

which by section 9, clause 6, must be " made by 
law," for any of the purposes of the govern- 
ment, by section 8, clause 12, shall not be made 
for the use of the armies " for a longer term than 
two years." 

§ 466. 3d, The reservation in the sixteenth 
clause of the 8th section, in favor of the States, 
of " the appointment of the officers, and the 
authority of training the militia according to the 
discipline prescribed by Congress," when they 
are not " employed in the service of the United 
States," is a qualification or postponement of the 
power of Congress in that regard, but not .a 
negation of it; so that there must necessarily be 
a faihire in the performance of the duty in case 
the States, or any of them, should refuse or un- 
reasonably neglect to perform it. To perform it 
themselves would probably be the most effectual 
rebuke of the default of the subordinate govern- 
ment. 

§ 467. 4th, By the first clause of section 9, 
" The migration or importation of such persons as 
any of the States now existing shall think proper 
to admit, shall not be prohibited by the Congress 
prior to the year eighteen hundred and eight." 
The only persons they wished to prohibit were 
slaves, whose importation was already prohibited 
by all the States but three. Four new States 
were afterwards admitted during the I'estriction ; 
so that, during the whole time, the slave-trade 
might have been prohibited in ten old States and 



LEGISLATIVE POWERS. 415 

all the territories, and after 1802 in four new 
States besides. But this never was done, or even 
the authorized tax imposed on the importation, 
for the same reason that nothing else was done 
in disparagement of slavery.^ The clause is now 
obsolete, and only remains on the face of the 
Constitution, to be used in argument that the 
Constitution expressly recognizes slavery, when 
it says not one word about it; though it contains 
many provisions which would authorize the gov- 
ernment to operate upon it, as well as upon all 
the other interests of the nation. 

§ 468. 5th, "The privilege of the writ of 
habeas corpus shall not be suspended, unless 
when, in cases of rebellion or invasion, the jiublic 
safety may require it." This is in the nature of 
an article in a bill of rights. What the right or 
privilege is, who are entitled to it, and for what 
wrong, are questions that can be answered only 
by the common law. By that we know that 
the writ was a remedy for the loss of personal 
liberty, and that both the liberty and the remedy 
were of common right. This was the law which 
our ancestors brought with them to this country; 
which they and their successors used, in every 
State in the Union, to the time of the adoption 
of the Constitution, and which that rendered 
perpetual : for if the writ cannot be " suspended," 
or rendered temporarily invalid, a fortiori it 
cannot be repealed, or rendered permanently 

1 Ante, p. 134. 



416 LEGISLATIVE POWERS. 

invalid. That would be " to strain out the gnat, 
and swallow the camel." 

§ 469. 'No special provision is made against a 
repeal of the law, because, the writ being recog- 
nized as a personal right or privilege, in the 
Constitution necessarily becomes a part of it, 
and as permanent and irrepealable as the Con- 
stitution itself. The clause has no special refer- 
ence to Congress, or to any other department 
of the general or subordinate governments; but 
applies equally, and at all times, to every one 
subject to the laws of the land, with the specified 
exception. "No provision is made for issuing the 
writ, any more than for the form and action of 
it ; because that being a creature of the common 
law, explained, defined, and governed only by 
that law, and constitutionally adopted from it, it 
was necessarily recognized in its common-law 
nature and character, and was demandable of 
common right by every man entitled to the pro- 
tection of the government, wherever "justice 
was established" and legally administered. Can 
it be true, then, that the "judicial ]30wer of the 
United States," when properly organized, has 
no authority to issue this writ, unless a special 
statute confers it? On the contrary, is it not 
true that no court in which the Constitution 
vests that power could rightfully refuse the writ 
in a proper case, unless it was under a special 
constitutional restraint? 

§ 470. An idea of the inlportance of this con- 



LEGISLATIVE POWERS. 417 

stitutional adoption of the writ of habeas corpus 
is to be reached only by a consideration of the 
nature and purposes of the writ, and the right 
which it guards and protects. It is called in the 
English law, where it originated, haheas coiyus 
ad suhjiciendum; and its object and office is to 
bring the applicant for it, who may be " a7iy p)er- 
son " under personal restraint, before a competent 
tribunal, to inquire into the cause of his restraint 
or detention, and to deliver or discharge him in 
case no legal cause is shown, or to adapt the 
I'estraint to the cause, so far as law and justice 
may be found to require. It presupposes and 
recognizes the actual right, prima facie, of every 
subject of the government to the personal enjoy- 
ment of " the blessings of liberty," and of course 
the universal right to the writ. This constitu- 
tional adoption of the writ, and recognition of 
the right it protects, is one of the means used 
for the attainment of that great and fundamental 
purpose and duty of the government, " to secure 
the blessings of liberty to ourselves and our pos- 
terity." 

§ 471. The right to this writ operates as a 
resti-aint on power. It remains to inquire, in 
regard to the excepted " cases," when, why, and 
by whom the restraint may be removed, and 
power left without this restraint, — when rebel- 
lion or invasion require it for the public safety. 
Why, — because they require it for that pur- 
pose. By whom, — by those responsible for the 

27 



418 LEGISLATIVE POWERS. 

public safety. Hoid, — temporarily, by suspen- 
sion only; and not permanently, by repeal or 
otherwise. Rebellion and invasion are internal 
war; and as Congress may declare war, and 
" provide for the common defence," beforehand 
or afterwards, by any means in the power of the 
nation, they may doubtless use this as one, if 
they judge it to be required. 

§ 472. The executive also, who must conduct 
and carry on the war, is responsible for its suc- 
cessful issue, to the extent of the faithful and 
eflS.cient use of all the powers vested in him by 
the Constitution, by martial law, by the usages 
of civilized warfare, — which are a part of the law 
of nations, and of course of the Constitution, — 
and by all other law^s of the land. As to w^hat 
are the rights and usages of war, or what is 
authorized by the laws of war, in the case of 
internal war, the people of the United States 
had, before the late rebellion, the benefit of 
some schooling.-^ They have learned, not only 
that the habeas corpus might be suspended by 
military authority in times of invasion, but that 
the judge himself who issued it might be sus- 
•pended also. This important lesson in martial 
law was taught practically, learned experimen- 
tally, and accepted and approved deliberately 
and thoroughly, by the whole government and 
people of the nation. Similar views of the execu- 
tive or military power, in the time of internal war, 

1 Proceedings of General Jackson at New Orleans in 1815. 



LEGISLATIVE POWERS. 419 

have since been practised upon, and deliberately 
sanctioned by law in the Habeas-Corpus Act of 
March, 1863. It is safe to presume, that the 
civil rights of individuals, however protected 
behind bulwarks and barricades of words, stand- 
ing in the way of military power, backed up by 
the peremj^tory demands of the public safety, 
will always be swept away as with a besom, 
as they always have been. " Inter arma leges 
silent," — that is, all laws, except the law martial, 
arid so much of the civil law as it may comport 
with the paramount purposes of those control- 
ling the mihtary authority to tolerate. 

§ 473. 6th, " 'No bill of attainder or ex post 
facto law shall be 23assed." A bill of attainder, 
by the common law, as our fathers imported it 
from England and practised it themselves, be- 
fore the adoption of the Constitution, was an 
act of sovereign power, in the form of a special 
statute of the omnipoteyit British Parliament, or 
those who claimed to be their successors in this 
country, by which a man was pronounced guilty 
or attainted of some crime, and punished by 
deprivation of his vested rights, without trial or 
judgment per legem terroe. Such was its length 
and breadth. Accordingly the Supreme Court 
of the United States^ say, and the saying is 
afterwards fully approved by Judge Story and 
Chancellor Kent, that "a bill of attainder may 
affect the life of an individual, or may confiscate 

1 6 Cr. Rep., in the case of Fletcher u. Peck. 



4:20 LEGISLATIVE POWEES. 

his property, or may do both." They might have 
added, that it may affect his hberty also, as well 
as his other rights ; and that it may be made to 
apply to any number of individuals, or to a class 
of persons, by definite description and identifica- 
tion, as well as to a single individual by name. 

§ 474. Such was the bill of attainder origin- 
ally in England, and such was it in this country 
at the time of the adoption of the Constitution. 
By that the whole subject was abolished and pro- 
hibited entirely and for ever. Modern refinement 
has introduced some distinctions into the Eng- 
lish law, which were never adopted here either by 
our common law or by our Constitution. A bill 
of attainder now in England strictly includes 
only cases punished with death, and consequent 
corruption of blood and confiscation of estate. 
Similar bills only prescribing less punishment are 
called by another name, — bills of pains and pen- 
alties. 

§ 475. But the distinction was never adopted 
or recognized in this country while either were 
allowed. Both were included under the more 
ancient name. The gist of the Act is deprivation 
of rights by statute or legislative decree, rather 
than by due process and judgment of law. The 
rights affected may be life, liberty, property, and 
reputation; all or either. If it convicts of crime 
only, without further punishment; or if it takes 
away life, liberty, or property only, without im- 
puting crime, — it is still of the same character, 



LEGISLATIVE POWERS. 421 

and falls into the same class and nnder the same 
condemnation. 

§ 476. They are all arbitrary and despotic in 
their nature, violative of the essential principles 
of justice and right, and in direct opposition to, 
at least, three other distinct and express pro- 
visions of our Constitution. 1st, The legislative 
power or right to say what the law shall be, is 
given to Congress. This is the only power, 
relative to this subject, vested in that depart- 
ment. Bills of attainder are acts of despotic 
and unlimited power, not acts of legislation. 
Legislation may prescribe the mode in which cer- 
tain vested private rights may become divested. 
But the right and duty of applying this law to 
particular persons and cases as they arise, and 
executing it, appertains to other departments. 
To take away private rights is not the exercise 
of legislative poAver. 2d, These acts are all 
ex post facto in their nature, criminal or penal in 
their character, and founded on past transac- 
tions, and growing out of or connected with past 
considerations; and, 3d, They deprive a man of 
life, liberty, property, and character, either or 
all of them, without due process of law, and 
without trial and judgment j^9er legem terrm, or 
according to the general laws of the land. 

§ 477. Ex post facto laws have generally been 
considered to be such only as render an act 
punishable in a manner different and more un- 
favorable to the criminal, than it was when com- 



422 . LEGISLATIVE POWERS. 

mitted, and to be restricted to criminal and 
jDenal matters; while retrospective laws relate 
exclusively to civil matters. It may be found 
necessary to reconsider this distinction. Civil 
and criminal relate rather to the form in which 
the act is dealt with, than to the nature and char- 
acter of the act itself. The same offence may be 
dealt with in either form or both; and that 
whether it was in itself a violation of natural or 
moral law, or only in violation of municipal law, 
or, as the lawyers say, malum per se, or merely 
malum prohibitum. It may be punishable, cor- 
poreally or pecuniarily, by indictment or informa- 
tion by the public prosecutor, or only in damages 
by way of personal remuneration at the private 
suit of the injured party. 

§ 478. In such a case, a law made after the 
offence, requiring the court to double or triple 
the fine or imprisonment authorized at the time 
the act was committed, would be no more unjust 
than one requiring the jury to assess double or 
triple the actual damages allowable at the same 
time. ]^either reasons nor authorities are want- 
ing for the opinion that this constitutional pro- 
hibition ought not to be construed as applicable 
solely to criminal cases. ^ If a legislature should 
undertake to enact that A. B. should be deprived 
of his liberty, and become and remain the slave 
of C. D. for life, without any imputation or 

1 See 2 Peters' Rep., 416, 681; 4 Wheat. Rep., 578; 3 Story's Com., 
212. 



LEGISLATIVE POWERS. 423 

attainder of crime, but only because A. B. was 
born with a black skin and C. D. with a w^hite 
one, it would seem to be diffiult to find a sound 
reason why such a statute was not void, both as 
a bill of attainder and an ex ])ost facto law, 
though it said not one word about either crimes 
or punishments. 

§ 479. In the 3d section of Article III. there 
is another restrictive clause in regard to attain- 
der. It is in these words, " Congress shall have 
power to declare the punishment of treason; but 
no attainder of treason shall work corruption of 
blood or forfeiture, except during the life of the 
person attainted." This authority, or at least 
the exercise of it, indirectly repeals or annuls 
any existing i3unishment of treason, whether by 
the common law or any other law; and treason 
could not be punished otherwise than as Con- 
gress declared what the punishment should be. 
It may, of course, be any thing that Congress 
choose to 23rescribe, — death, attainder, corrup- 
tion of blood, forfeiture, or any other. What, 
then, is the restriction? Just this: that if the 
punishment is, in the whole or in part, attainder, 
which it cannot be without an act of Congress, 
it shall not include or carry with it, shall not 
" work corruption of blood or forfeiture, except 
during the life of the person attainted." It 
operates directly on the meaning or definition of 
attainder, and not on the power of Congress. 

§ 480. What, then, is attainder, without the 



424 LEGISLATIVE POWEES. 

constitutional limitation, — that is, a judicial at- 
tainder, by judgment of law, after a legal trial 
and conviction, as a punishment? For we have 
seen, that no legislative attainder, or attainder 
by legislative act, can be enacted for treason or 
any other crime, and of course not without a 
crime. Here we are sent directly to the com- 
mon law; for "attainder" is a common-law term, 
existing nowhere else, and having no meaning 
independent of the common law. A judicial 
attainder, and we can have no other, is, by the 
common law, no part of the judgment. On con- 
viction of any crime of which death is the pen- 
alty, that is the end of the judgment; but the 
eifect of that judgment, the " inseparable conse- 
quence," is attainder, — attinctus, attaint, stain, 
soil, disgrace, — knd includes many important 
disabilities ; among others, the " forfeiture of 
estate and corruption of blood." ^ 

§ 481. By this provision, the judgment of 
death, as a punishment for treason, cannot be 
passed unless it is prescribed by Congress; and, 
if it is so, it cannot be attended with any of these 
consequences, as incident to it, though not em- 
braced in it; in the language of our Constitution, 
as worhed by it. Another punishment shall not be 
added to it, as an incident or an " inevitable con- 
sequence," by construction; especially no " cor- 
ruption of blood or forfeiture," after the traitor 
is dead. " Except during the life " is exactly 

1 4 Bl. Com., 380. 



LEGISLATIVE POWERS. 425 

equivalent to " not after the death." So that, by 
this clause of the Constitution, the common-law 
punishment of treason, if there was or could be 
any such under our government, was not only 
im23licitly annulled by giving the whole power of 
punishment to Congress, but the legal meaning 
of the common-law terms of punishment was so 
altered, that, if Congress intended to punish by 
any or all the common-law means, they must do 
it directly and expressly, and cannot accomplish 
it by construction, as a mere incident or conse- 
quence of the punishment of death. 

§ 482. Even if corruption of blood and forfei- 
ture of estate are expressly enacted, they cannot 
be made to apply to anybody but the traitor 
himself, and so cannot punish his innocent pos- 
terity after he is dead. In perfect accordance 
with this, though going somewhat beyond it, the 
statute of 1790 provides " that no conviction or 
judgment, for any of the offences aforesaid [of 
which treason is one], shall work corruption 
of blood, or any forfeiture of estate , " saying 
nothing about attainder, or the life of the party. 
But Congress have, in many instances, punished 
offences, and treason among the rest, by confis- 
cation of estate, in whole or in part, as well as 
by fine, covering the full value of the whole, 
which substantially amounts to the same thing. 
Forfeiture can affect nothing but what was his 
own during his life; and corruption of blood 
cannot extend beyond his death, so as to inter- 



426 LEGISLATIVE POWERS. 

fere with any right of inheritance that has to be 
traced through him. This remedied two evils 
of the EngHsh law: 1st, The conviction of per- 
sons after they w^ere dead, for the purpose of 
forfeiting their estates in the hands of their 
heirs; and, 2d, The corruption of blood after 
death, that would prevent a descendant from 
inheriting, from a remote ancestor, an estate 
which would have gone to the traitor, had he 
been living. 

§ 483. 7th, "JSTo money shall be drawn from the 
treasury, but in consequence of appropriations 
made by law." As Congress must make the 
law, they only can make the appropriations ', and, 
as the authority to make appropriations is not 
limited to any particular purposes and uses, it 
necessarily extends to all the purposes for which 
Congress may legislate, and for which the Con- 
stitution was ordained and established. Particu- 
larly does it extend to all the purposes for which 
taxes may be laid and collected, or money bor- 
rowed and debts contracted on the credit of the 
United States. They may unquestionably, in 
the language of the Constitution, " pay the debts, 
and provide for the common defence and gene- 
ral welfare, of the United States," if any com- 
bination of words in the language could give 
them that authority. These include, and are an 
epitome of, all the objects for which the govern- 
ment exists. The only thing indispensably ne- 
cessary to sustain the right or power of Congress 



LEGISLATIVE POWERS. 427 

to make any appropriation whatever, would seem 
to be, that they should persuade themselves that 
it has a tendency to promote or advance the 
Union, justice, tranquillity, safety, welfare, or 
liberty of the people of the United States. If 
any thing can be devised having a more remote 
bearing in favor of these important constitutional 
objects than some of the measures heretofore 
adopted and pursued under the auspices of strict 
constructionists, it might be useful to have them 
pointed out, so that they may serve as land- 
marks on this branch of governmental authority. 

§ 484. 8th, ":N'o title of nobility shall be 
granted by the United States, and no person 
holding any office of profit or trust under them 
shall, without the consent of the Congress, ac- 
cept of any present, emolument, office, or title, 
of any kind whatever, from any king, prince, or 
foreign State." This government cannot confer 
a title of nobility, neither by Congress nor any or 
all the de23artments ; and no officer of the gov- 
ernment can accept of one, or or" any thing else, 
without leave of Congress, from any foreign 
government. 

§ 485. 9th, By Article lY., section 3, "l!^o 
new State shall be formed or erected within the 
jurisdiction of any other State; nor any State 
be formed by the junction of two or more States, 
or parts of States, without the consent of the 
legislatures of the States concerned, as well as 
of the Congress." This i*estrains Congress from 



428 LEGISLATIVE POWERS. 

dividing or amalgamating States. But it cannot 
apply to places in rebellion; to people who have 
made themselves public enemies, and thereby 
lost all their rights under the Constitution; to 
places where there is no government organized 
under the Constitution, administered in subor- 
dination to it, and recognized as a State govern- 
ment by the United States. Such places and 
such people, within the jurisdiction of the United 
States, are subject to the government of the 
United States only, and without the power of 
making any other, without their consent. The 
Constitution of the United States is " adequate 
to all the exigencies of government;" and they 
may be governed by it, as other places and peo- 
ple having no State governments are governed 
by it, — with their present divisions, or new ones, 
or none, at the election of the government. 
This is the jDosition in which they have placed 
themselves, and they have nobody else to com- 
plain of. 

§ 486. 10th, The fifth Article contains two 
restrictions on the power of amendment : " That 
no amendment which may be made prior to the 
year 1808 shall in any manner affect the first 
and fourth clauses in the 9th section of the 
first Article; and that no State, without its con- 
sent, shall be deprived of its equal suffrage in 
the Senate." The first has long since expired 
by its own limitation, and become obsolete; no 
practical question having ever been raised upon 



LEGISLATIVE POWERS. 429 

it. The other is perj)etual in its terms, and has 
hitherto proved effectual in its action. Bnt its 
strictly legal operation has never been discussed 
or questioned. These are the only instances in 
which the Constitution has attempted to place 
any of its provisions beyond the power of amend- 
ment. 

11th, " JSTo religious test shall ever be required 
as a qualification for any office or public trust 
under the United States." This requires no re- 
mark, and the restrictions in the Amendments 
have been considered under that head. 



CHAPTER XXyil. 

THE EXECUTIVE. 

§ 487. By Article II., " The executive power 
shall be vested in a President of the United 
States." This declares the essential and per- 
fect unity of the executive department. What- 
ever shall be found to constitute " executive 
power " belongs to the President. " Shall be 
vested," in the language of the Constitution, 
means is vested. " All legislative powers," . . . 
"the executive power,". . . and " the judicial 
power," ..." shall be vested " respectively in 
their appropriate departments. l!^ot that any 
other or further act is necessary to vest them, 
but they are hereby vested ipso facto. In this 
sentence, the nature of the power is no other- 
wise defined than by its name; but it is obvious 
from that only, that the " executive power " can 
be notliing but the executive power of the gov- 
ernment, which must mean the power to execute 
the Constitution and all the laws made under it. 

[430] 



THE PRESIDENT. 431 

" The object of this department is the execution 
of the law." ^ 

THE PRESIDENT. 

§ 488. The President is to be chosen by 
electors, of whom each State is entitled to a 
number equal to the whole number of its Sena- 
tors and Kepresentatives, to be designated in 
such manner as the legislature thereof may 
direct. This has, in a few instances, been con- 
sidered equivalent to an authority in the State 
legislature to appoint them themselves ; and 
such an appointment has never been rejected 
as unconstitutional. But as Congress is ex- 
pressly authorized to " determine the time of 
choosing the electors," a phrase almost exclu- 
sively appropriated to a popular election, " and 
the day on which they shall give their votes," the 
choice has generally been referred to the peo- 
ple; and this may now be considered to be the 
established custom, if not the constitutional 
requisition. The Constitution prescribes no 
qualifications for an elector, but that he shall 
not be a member of Congress, or hold any office 
under the government. 

§ 489. The electors shall meet and vote by 
ballot, in their respective States, on the same day 
in every State; sign, certify, seal up, direct to 
the President of the Senate, and transmit to the 
seat of the government of the United States, a 

1 1 Kent's Com., 253. 



432 THE PRESIDENT. 

list of all the persons voted for as President, and 
the number of votes for each. The President 
of the Senate shall, in the presence of the Senate 
and House of Representatives, open all the cer- 
tificates; and the votes shall then be counted. If 
any person have a majority of the whole number 
of electors appointed, he shall be the President 
for the term of four years from the fourth day 
of March then next. If no person have such 
majority, then from the persons, not exceeding 
three, having the highest numbers, the House 
of Representatives shall, by ballot, immediately 
choose the President ; but the vote shall be 
taken by States, each State having one vote. 
A quorum for the purpose shall be one or more 
members from two-thirds of the States, and a 
majority of all the States shall be necessary to 
a choice. If a President shall not be chosen 
before the fourth day of the next March, the 
Yice-President shall act as President, as in case 
of the death, or other constitutional disability, of 
the President. 

§ 490. In the year 1865, when certain States 
were in rebellion against the government, not 
represented in Congress, and having no State 
governments regularly organized and admin- 
istered in conformity to the Constitution of the 
United States, and in obedience to its laws, Con- 
gress, by concurrent resolution, directed that no 
certificates of votes from those States should 
be opened, or votes counted, in their presence; 



THE PRESIDENT. 433 

thereby deciding that the people inhabiting those 
States had no right to participate in the election : 
which, as each State is entitled to as many votes 
for President as of Senators and Representatives 
in Congress, amonnts to a decision that States 
so situated are not States at all, and are not 
entitled to any of the rights and privileges of 
States in this Union. 

§ 491. The President shall receive a compen- 
sation for his services, which shall not be in- 
creased or diminished during the period for 
which he shall have been elected, and shall not 
receive any other emolument from the United 
States, or any of them. He must be a natural- 
born citizen, at least thirty-five years of age, 
have resided fourteen years within the United 
States, and take the required oath faithfully to 
execute the duties of the office. 

§ 492. The Vice-President shall have the same 
qualifications, be chosen by the same electors, 
at the same time, in the same manner, and for 
the same term, — no elector voting for candi- 
dates for both offices belonging to his own State. 
If no person shall have a majority of the votes 
of the whole number of electors appointed, the 
Senate shall choose the Yice-President from 
those persons having the two highest numbers; 
a quorum for the purpose being two-thirds of 
the whole number of Senators, and a majority 
of the whole number necessary for a choice. 
These proportions are understood to refer to the 

28 



434 THE PKESIDENT. 

number of Senators actually admitted and sworn 
into the Senate, as constituted at the time. The 
Vice-President has no official duty to perform, 
except to preside in the Senate,^ unless in case 
of the removal, death, resignation, or inability of 
the President, when that office and its duties 
devolve on him. 

§ 493. " The President, Yice-President, and all 
civil officers of the United States, shall be re- 
moved from office on impeachment for, and con- 
viction of, treason, bribery, or other high crimes 
and misdemeanors."^ — "The House of Pepre- 
sentatives . . . shall have the sole power of im- 
peachment," and " the Senate shall have the sole 
power to try all impeachments. When sitting 
for that purpose, they shall be on oath or affirma- 
tion. When the President of the United States 
is tried, the Chief Justice shall preside; and no 
person shall be convicted without the concur- 
rence of two-thirds of the members present. 
Judgment in cases of impeachment shall not 
extend further than to removal from office, and 
disqualification to hold and enjoy any office of 
honor, trust, or profit, under the United States ; ^ 

1 The Constitution places a man in the chair of the Senate who is not 
a member ; and, when the appointment of a presiding officer devolves on 
them, there is no constitutional objection to their doing the same, any 
more than there is to their appointing the other officers of the Senate in 
the same manner. 

2 Section 4, Article II. ; and by sections 2 and 3, Article I. 

^ " Shall not extend further " does not mean shall not exceed or fall 
short, but be exactly removal and disqualification, and nothing else ; be- 
cause the 4th section prescribes only the first half as the punishment of 



THE PRESIDENT. 435 

but the party convicted shall nevertheless be 
liable and subject to indictment, trial, judgment, 
and 23unishment, according to law." By section 
2, Article II., the President " shall have power 
to grant reprieves and pardons for offences 
against the United States, excejit in cases of 
impeachment;" and by Article III., section 2, 
" The trial of all crimes, except in cases of im- 
peachment, shall be by jury." These are the 
only instances in which impeachments are men- 
tioned or alluded to in the Constitution. 

§ 494. By these it appears, — 1. Affirmatively, 
that civil officers, including the President and 

civil officers, when convicted of a certain class of crimes or misdemeanors. 
For tliese or any otlier classes of offences, the punishment may or may 
not be disqualitication ; and for other officers or persons than civil offi- 
cers, the punishment may or may not include removal. It " shall not 
extend further " than both, in any case ; but must it " extend " so lar as 
either, in every case ? It must extend to removal in the case of " civil 
officers " convicted of the offences mentioned in section 4. But the Con- 
stitution does not say it shall " extend" to either, in any other case. Per- 
sons or officers, other than civil officers, may be convicted of petit crimes 
or misdemeanors, or official or personal delinquencies and improprieties, 
worthy or not of either of those punishments. If so, what punishment is 
the Senate authorized to inflict ; or, in other words, what punishments do 
" not extend further " than removal and disqualification for office, abso- 
lute and perpetual"? Certainly either alone is less than both; and either, 
with limitation as to time, pi'erogatives, perquisites, &c , is less than the 
whole without limitation. Though the same in kind, it may be less in 
degree, and so " not extend further." But how is it with puni.^hments 
different in kind ? Deprivation of other rights, privileges, and immunities, 
natural, civil, or political. Are any, and which, of these less, and so 
would not exceed or " extend further," than deprivation of the right to 
an office, in existence or in expectancy 1 We have no experience to give 
answer to these questions. When private individuals are convicted of 
treason or other high crimes, and civil officers of delinquencies not 
amounting to high crimes or misdemeanors, we shall see if any different 
punishments may be inflicted not exceeding those named in the Consti- 
tution. 



436 THE PRESIDENT. 

Yice-President, may be impeached for treason, 
bribery, or other high crimes and misdemeanors; 
and, if convicted, shall be removed from office, 
and may be disqualified for any office under the 
government. 2. It does not appear, negatively, 
that they may not be impeached for other and 
lesser offences, and punished in the same manner, 
or otherwise not exceeding that. 3. The gen- 
eral power of impeachment and trial may extend 
to others besides civil officers, as military or 
naval officers, or even persons not in office, 
and to other offences than those expressly re- 
quiring a judgment of removal from office; and 
the punishment may be the same, with the ex- 
ception of removal, when the offender is not 
an officer. 4. A pardon, before or after con- 
viction, could not affect the punishment, whether 
it were removal, disqualification, or any thing 
less, and whether the offence were a high crime 
at law, or merely some misfeasance or non-feas- 
ance in office. 5. Whatever may be the offence 
or the punishment on impeachment, or whoever 
may be the party, his responsibleness to the law 
of the land, in due course of its ordinary admin- 
istration, is not interfered with. 

§ 495. It was the opinion of the framers and 
early administrators of our government, that all 
the civil officers were impeachable for minor mal- 
feasances in office, not amounting to high crimes 
or misdemeanors at law, and punishable in any 
manner not exceeding removal from, and dis- 



THE PRESIDENT. 437 

qualification for, office. In the great debate on 
the President's power of removal from office, in 
the first Congress, Mr. Madison said, " He will 
be impeachable by this House, before the Senate, 
for such an act of maladministration: the wan- 
ton removal of meritorious officers would sub- 
ject him to impeachment and removal from his 
high trust." ^ Judge Chase was nominally im- 
peached " for high crimes and misdemeanors," 
though the articles of impeachment specified 
only certain acts of questionable judicial pro- 
priety, not amounting in law to any crime, high 
or low. 

§ 496. Judge Pickering was convicted and 
removed on charges, in this respect, of a similar 
character; though he was absent and insane, and 
answered neither by himself nor counsel. In 
the case of Senator Blount, he was sufficiently 
charged with the crime of bribery; but he was 
not tried, for the Senate expelled him, on their 
own motion. There is nothing in the Constitu- 
tion that asserts or implies that persons, Avhether 
in office or not, may not be impeached for crimes, 
or for minor malfeasances or non-feasances, not 
amounting to any oifence, for which officers must 
be removed, and punished on conviction, within 
the limits allowed in section 3 of the first Arti- 
cle. 1^0 such principle has been settled in 
practice. If private citizens may be impeached 
and convicted of treason or other crime or mis- 

1 1 Lloyd's Debates, 503, 351, 450; 4 ElUot's Debates, 141. 



438 HIS POWERS. 

demeanor, they may be punished in the same 
manner. 

HIS POWEES. 

§ 497. " The executive power " of the govern- 
ment, ex, m termini^ includes the aggregate of 
all the agencies requisite in the execution of the 
whole law. As the department is a unit, and 
deposited in a single hand, with the duty to 
" take care that the laws be faithfully executed," 
he would be legally competent, and actually 
authorized, to execute in person any portion of 
it he pleased. It being physically impossible 
for him personally to execute the whole, justice 
would require, that, in the performance of the 
residue for which he was responsible, he should 
have the appointment and control of his own 
agents. But the Constitution interferes with 
this adjustment of duties. The President him- 
self is subject to law, and only bound to fulfil 
his duties according to law. The law regulates 
the appointment and duties of his subordinates, 
and relieves the weight of his own responsible- 
ness accordingly. 

§ 498. The law-making, the law-construing 
and ajDplying, and the law-executing powers are 
co-ordinate and co-extensive, each embracing all 
of its kind necessary and proper for the admin- 
istration of the government, and all granted by 
the Constitution. If they are not precisely and 
definitely bounded, they are well distinguished 



HIS POWERS. 439 

and understood in their general outlines, and 
more exactly defined by occasional landmarks, 
placing particular matters on one side or the 
other of the divisional line. For the purpose of 
performing all the duties of his department, the 
President is not only the chief magistrate, but 
the commander-in-chief of the army, navy, and 
militia, when in service, embracing all the phys- 
ical power of the nation, which must be applied 
to the protection and administration of govern- i 
ment and law. But he must execute the law as 
it is written. 

§ 499. Simply as the executive, he can make 
no law, and dispense with no law; neither make 
peace nor remit penalties. Hence explanations, 
qualifications, and limitations are necessary. The 
powers, being limited by law, must be executed 
according to law.^ The power of declaring 
war is vested in Congress; but this can only 
apply to such war as is at the option of the 
government. It cannot apply to such cases of 
aggression as the President, or even a subordi- 
nate ofiicer, is bound to resist, and which be- 
comes war by such resistance. While it takes 
two parties to make a war, war may exist, both 
in fact and in law, though it should be lawfully 
declared by one party only, or even by neither. 
Such a war will be speedily adopted by Con- 
gress, as in the case of the Mexican war of 
1846 and the great civil war of 1861 ; not neces- 

1 Brown v. United States, 8 Cr. Rep., 110, 147. 



440 HIS POWERS. 

sarily by being declared, but by being recognized 
and acted upon, as the existing status of the 
country. "War . . . begins from the mutual 
use of force." ^ This doctrine is abundantly sus- 
tained by the Supreme Court in the prize cases 
reported 2 Black's R., as well as by all the other 
authorities on international law; and it is logi- 
cally reasoned out in Trumbull's " McFingal," 
thus : — 

" For that's no war, each mortal knows, 
Where one side only gives the blows, 
And th' other hears 'em." 

" But when you shot, and not before. 
It then commenced a real war." 

§ 500. "When the state of war legally exists, 
it is the law of the land, which the President is 
bound to execute. He has a discretion as to 
the manner and extent, within the rules of civi- 
lized warfare established by the law of nations, 
limited, however, in both respects by the ex- 
pressed will of the legislature."^ The legislature 
might perhaps, with the consent of the adverse 
party, terminate it by repealing the declaration, 
and withholding the means of prosecuting it. 
But the executive, as such, can have no power 
to terminate it, without a direct violation of his 
official oath to execute the law. By his partici- 
pation with Congress in the legislative power, 
and with the Senate in the treaty-making power, 
he may have a voice in the matter; but, simply 
as the executive, he has no power or duty but 

1 Bynkershoek. 2 Brown v. United States, ubi sup. 



HIS POWERS. 441 

to prosecute it to the end, agreeably to such laws 
as are or may be made for the purj)ose. 

§ 501. All his duties, with respect to the 
enemy, are not only executory, but they are mili- 
tary and belligerent, arising out of the state of 
war. As commander-in-chief, he may make a 
truce, or partial cessation of hostilities; so may 
a subordinate commander, from the nature of 
his trust. But a general suspension of hostili- 
ties throughout the nation, more especially for a 
length of time, must be made by the sovereign 
or supreme legislative power of the nation.^ 
"War can only be terminated by peace. An 
abandonment of the war, or a subjugation of the 
enemy, is not necessarily peace. This requires 
two parties as much as the war. A subdued 
enemy may be held in continued subjugation; 
but such holding, while it continues, is perpetual 
war. 

§ 502. By virtue of his military command, he 
must govern them, and may govern them, by 
martial law, under such forms of civil and muni- 
cipal regulation as he pleases, until the supreme 
legislature, or the treaty-making power, shall 
give them peace or civil administration, in such 
manner as their circumstances shall seem to 
them to demand and warrant. But his military 
government, as well as his civil, is only execu- 
tory. He governs as the executive, to give 

1 Vattel, b. 8, c. 16, section 233 ; Grotius, b. 3, c. 21 ; 1 Kent's Com., 
149. 



442 HIS POWERS. 

effect to actual law. If the legislative authority 
does not give a more appropriate and precisely 
adapted law for the case, he must conform to 
such general provisions of constitutional and 
international law as may be found suited to the 
exigency. In that case, he may undoubtedly 
govern a subdued enemy, either directly, by his 
own arbitrary but just will, or through such 
forms of voluntary self-government as he may 
choose to permit, and they to practise, — always 
subject to his military supervision and approval. 
§ 503. He can, however, confer on them no 
rights beyond those of belligerent enemies, and 
absolute submission to his own military jurisdic- 
tion. If he undertakes to proclaim peace, aban- 
dons his mihtary supervision, and remits them to 
the independent election and administration of 
such civil and political regulations and institu- 
tions as they may have formerly practised, or 
may thereafter adopt, he not only violates his 
trust, and abandons his official duty, but he 
usurps the sovereignty and authority of the na- 
tion which in no sense belong to him, and which 
only are adequate to confer peace and political 
rights on such a jDeople. But, even if they could 
have peace, having no lawful civil government 
within the Union, and no right to create one, 
they would be exclusively under the Constitu- 
tion and laws of the United States. These, as 
the executive and the only civil magistrate, he 
would be bound to execute and administer, as 



HIS POWERS. 443 

they stood, in the most effectual manner he could 
under the circumstances, till the law-making 
power should furnish the needful additions. He 
could make no new laws,, nor authorize others 
to make them, or administer them if they were 
made, any more than he could do the same things 
for the rest of the national domain. 

§ 504. It was in this manner that ;N"ew Mexico 
and California were governed, both before and 
after peace had confirmed our title to them, until 
Congress gave them a different government. It 
was in the same wa}^ that the rebel States were 
ostensibly governed, for a long time after the 
surrender of their armies, and until the neglect 
of Congress and the prevalence of evil counsels 
in the executive had induced the withdrawal of 
appropriate military control over them, and left 
them, in the hands of rebels, to the anarchy, dis- 
order, and injustice which their own rebellious 
and unconstitutional agencies during the wai- 
had substituted in the place of the regular con- 
stitutional governments of republican States 
within the Union. These they had cast off and 
abolished, and now attempted to resort to with 
no other profession of subordination to the gen- 
eral government than they considered absolutely 
necessary to enable them to participate in it, and 
in due time again to essay its management and 
destruction. 

§ 505. The authority of the nation over them 
was perfect, as well by reason of their oi'iginal 



444 HIS POWERS. 

position as a component part of the United 
States, as by the result of the war. The Con- 
stitution was " ordained and estabhshed for the 
United States, — the whole land constituting 
the national domain ; and was ^ adequate to all 
the exigencies of the government' thereof," — 
all the exigencies of an entire and good govern- 
ment. Congress had the same " power to make 
all laws necessary and proper" to execute the 
Constitution over them, as over the rest of 
the country; to govern through the instrumen- 
tality of State organizations, where there were 
any legally constituted; and to govern exclu- 
sively of such organizations where there were 
none. They had the same exclusive jurisdiction 
over them that they had over the district of 
Columbia, the Territories, and all other places 
within the national domain where State govern- 
ments were excluded, or where, for any cause, 
none existed. 

§ 506. They had the same right to organize 
republican governments for them, and permit 
them, so far as they deemed it safe, to govern 
themselves thereby, and to re-admit them to 
all the rights and privileges of " States in the 
Union," which they had cast off and rejected, 
as they had to perform a similar operation in the 
Territories. It was the failure of Congress in 
these respects that gave the President the right, 
and imposed on him the duty, of continuing to 
govern them by martial law; and enabled him, 



HIS POWERS. 445 

by the neglect of that right and the violation of 
that duty, not to govern them at all, but to leave 
them, in destitution of any suitable external con- 
trol, to do what mischief they pleased to each 
other, and to the rest of the good people of the 
United States.^ 



1 Since this work went to the press, Congress have passed, by more 
than a two-thirds vote of botli Houses, " An Act to provide a more effi- 
cient government for the rebel States ; " which has (March 2) become a 
law, notwithstanding the President's veto. 

It recites, that " no legal State governments . . . now exist in the 
rebel States," and that some government is "necessary . . . until loyal 
and republican governments can be legally established ; " and enacts that 
they " be divided into five military districts, . . . subject to the military 
authority of the United States." That each district shall be assigned to 
a general officer of the army, with " a sufficient military force to enable 
him ... to enforce his authority." That it shall be his duty ... to 
protect all persons in their Tights ; ... to suppress insurrection, disorder, 
and violence ; ... to punish disturbers of the peace and criminals." He 
may allow " local civil tribunals," or " organize military commissions or 
tribunals for that purpose ; " and all State " interference . . . shall be 
null and void." No military sentence affecting life or liberty shall be ex- 
ecuted without the approval of the officer in command ; and no sentence 
of death, without that of the President. "When the people of any one of 
said rebel States shall have formed a government in conformity with 
the Constitution of the United States, . . . framed by delegates elected 
by the male citizens of said State, twenty-one years old or upwards, of 
whatever race, color, or previous condition," except disfranchised rebels 
and felons ; their constitution providing " that the elective franchise shall 
be enjoyed by all such persons as have the qualifications herein stated for 
electors of delegates ; and when such constitution shall be ratified by a 
majority of the persons voting on the question," . . . and been submitted 
to Congress and approved ; and when said State, by vote of its legislature 
elected under said constitution, shall have adopted the fourteenth Amend- 
ment," and it "shall have become a part of the constitution," — then 
said State may be represented in Congress, and the first four sections of 
this Act become inoperative : provided that no person excluded from office 
by the fourteenth Amendment shall be a delegate for forming such State 
constitution, or vote in the choice of a delegate. That, until the people 
shall be admitted to representation in Congress, any civil government 
therein shall be provisional only, " and shall be in all respects subject to 
the paramount authority of the United States." In all elections under 




HIS POWERS. 



§ 507. " He shall have power to grant re- 
prieves and pardons for offences against the 
United States, except in cases of impeachment." ^ 
This power is general and unqualified, reaching 
all offences, and including the remission of fines, 
penalties, and forfeitures, with a single excep- 
tion. It may be exercised before or after con- 
viction, and absolutely or conditionally; and no 
law can abridge his right in this respect. If this 
is not stated too broadly, it may still be hoped, 
that, so far at least as respects some of the in- 
cidents and effects of a pardon, means may be 
found, under some circumstances, to curtail them 
by law. The legal effect of the exercise of the 
king's prerogative of pardon was always regu- 
lated and controlled by Act of Parliament. 

§ 508. The exception of cases of impeachment 
undoubtedly prevents the interference of the 
President with any trials or punishments by im- 
peachment; but it is to be remembered, that all 
such offences are liable to be dealt with at law, 
like other similar offences, and may not in this 
respect be excluded from the benefit of a par- 
don. But as an impeachment cannot prevent 
a j)ardon, so neither can a pardon prevent an 
impeachment; and whatever punishment on im- 
peachment may be lawful, cannot be remitted 
or pardoned by the executive. This renders it 

the provisional governments, the same persons only shall be voters as 
above provided ; and no person shall be eligible to any office who is in- 
eligible by the fourteenth Amendment. 
1 Article II., section 2. 



HIS POWERS. 447 

important to consider who may be liable to im- 
jDcachments, and for what; and what may be the 
punishments that do " not extend further " than 
to removal and disqualification for office. 

§ 509. The right to punish for contempts, not 
being mentioned in the Constitution, has been 
supposed to arise to all legislative and judicial 
bodies, by implication, and from absolute neces- 
sity. As any external control over it might 
limit or destroy its efficacy, it has been inferred 
that the same implication must, from the same 
necessity, exclude the pardoning power from this 
class of offenders.^ 

§ 510. " He shall have power, by and with the 
advice and consent of the Senate, to make trea- 
ties, provided two-thirds of the Senators present 
concur."^ A treaty is in the nature of a law, 
and it should seem, on general principles, might 
be made by any power competent to give the 
law on the subject to which it relates. It differs 
from an ordinary law, by being international 
-in its character, affecting the interests and re- 
quiring the concurrence of independent States. 
If it should be in the form of a statute, condi- 
tioned on its adoption, in proper form, by another 
State, and the condition satisfactorily performed, 
its operation on the citizens and subjects of the 
first State, within its own jurisdiction, would 

1 6 Wheat. Rep., 204 ; Anderson v. Dunn ; Rawle on Constitution, 
chap, xvii., p. 177 ; 3 Story's Com., 358. 

2 Article II., section 2. 



448 HIS POWEES. 

hardly be distinguishable from that of an ordi- 
nary act of legislation on the same subject. ]N^ot 
only so, but our Constitution makes it expressly 
" the supreme law of the land," when " made 
under the authority of the United States," by 
whomsoever that authority may be exercised. 

§ 511. Instances are not wanting, under our 
government, where treaties have been made by 
the legislative power only, a simple majority of 
a quorum of both Houses of Congress, with the 
approval of the President. Perhaps the most 
notable instance of this was the Act of Congress 
of March 1, 1835, making certain propositions 
to the then independent State of Texas, by the 
acceptance of which, on her part, she merged 
herself in the United States, and became a com- 
ponent part of the nation, and a State in the 
Union. This was substantially a treaty between 
two independent nations, made, at least so far as 
the United States were concerned, by the legis- 
lative power exclusively, and by small majorities, 
when it probably could not have been made by 
the constitutional majority in the ordinary mode, 
— by the President and Senate. 

§ 512. Peace can be made by the legislative 
power, in time of war, with the concurrence of 
the adverse belligerent, by prohibiting the pros- 
ecution of the war; which would amount to a 
treaty. Instances of reciprocal provisions for 
commercial purposes, made and carried out be- 
tween independent States, by separate legislation, 



HIS POWERS. 449 

dependent on their being mntually adopted and 
executed, are substantially treaties made, if not 
wholly negotiated, by the legislative power. But 
the extent to which it may be competent for the 
supreme legislature to exercise a treaty-making 
power need not now -be considered, though a 
limit short of the full extent of constitutional 
legislation is not readily perceived. Interna- 
tional engagements entered into in this manner 
may be considered more emphatically exposed to 
the fluctuations of legislative opinion, than the 
more formal pledges of national faith usually 
adopted in treaties negotiated and exchanged by 
the executive authority. This idea might affect 
arrangements looking to performance in futuro, 
but could have no effect on stipulations execut- 
ing themselves in presenti. 

§ 513. However this may be, there can be no 
question of the right of the American people to 
give a similar authority to any other set of offi- 
cers or agents they please. In this instance, and 
by this 2d section, they have expressly given a 
" power ... to make treaties " to the President 
and Senate ; and they might in the same, or in an 
additional section, have given a similar power to 
other functionaries. In neither case w^ould the 
power thus granted detract from the general 
legislative power of Congress, whatever that 
may be, unless it should be made in terms, or 
by necessary implication, exclusive, which would 
directly negative the legislative power to do the 

29 



450 HIS POWERS. 

same thing. As the Constitution stands, no in- 
convenience is to be apprehended in the making 
of treaties. Both modes require the approbation 
of tlie President and Senate; while the legis- 
lative mode would substitute a majority of the 
House of Kepresentatives for the enlarged ma- 
jority of the Senate, and a two-thirds vote of 
both Houses for the approbation of the Presi- 
dent. The two, in the alternative, w^ould seem to 
furnish desirable safeguards for the public inter- 
est, against precipitation on the one hand, and 
factious opposition on the other. 

§ 514. Treaties being international, and re- 
quiring two parties, a general authority to make 
them must necessarily extend to and include the 
regulation of all subjects requiring, or adapted 
to, that mode of adjustment. " The power . . . 
embraces all sorts of treaties, — for peace or war, 
for commerce or territory, for alliance or suc- 
cors, for indemnity for injuries or payment of 
debts, for recognition and enforcement of prin- 
ciples of public law, and for any other purposes 
which the policy or interests of independent 
sovereigns may dictate in their intercourse with 
each other." ^ All these subjects, being matters 
of national concern, are of course not less within 
the purview of a legislative power, embracing the 
safety, welfare, and liberty of the people, than 
of the treaty-making power. When made, they 
are the supreme law, and equally binding on the 

1 3 Story's Com., 355; 5 Marshall's Washington, 650. 



HIS POWERS. 451 

people and on the government in all its branches. 
This point, thongh formerly disputed, is not now 
considered a debatable question.^ 

§ 515. "He may, on extraordinary occasions, 
convene both Houses or either of them; and, in 
case of disagreement between them with respect 
to the time of adjournment, he may adjourn 
them to such time as he shall think proper ; 
he shall receive ambassadors and other public 
ministers." As he may receive, so he may 
refuse to receive ; or, in other words, reject 
them. He is the only organ of communication 
with foreign nations. Thus we see, that, besides 
what would necessaril}^ fall within his exclusive 
and appropriate duty as the executive, to take 
care that all the laws are fliithfully executed, the 
President has a few special powers expressly 
assigned to him in the Constitution, by particular 
and specific grants. We must next examine the 
qualifications and restrictions which circumscribe 
and limit what would otherwise fall within the 
appropriate sphere of executive duty. 

§ 516. Making and executing the law would, 
in their broadest signification, cover the Avhole 
business of government. But our Constitu- 
tion, following the publicists and jurists, has 
instituted a third department, devoted mainly 
to construing the general rules of the law, in 
their application to the special circumstances of 
its subjects, and directing the manner of their 

1 1 Kent's Com., 267. 



452 HIS POWERS. 

execution. The duties of this department are 
intermediate between the other two, and impinge 
somewhat upon botli. How far they limit or 
qualify the right of either to adjust and apply 
the law to particular persons and cases, may be 
best seen in considering the judicial department. 
Another most important qualification of the ex- 
ecutive power is the distribution which the Con- 
stitution has made of the power of appointment 
to office. All officers, whether civil or military, 
are executive officers ; and we have seen that the 
selection and control of the agents by whom 
the laws are to be executed, would naturally 
result to the department exclusively responsible 
for their execution. But the Constitution has 
interfered with the power, and of course with 
the responsibility. 

§ 517. 1. All offices must be established by 
law, before they can be filled. The Su23reme 
Court is established by the Constitution ; but 
that foreign ministers are, has been denied. If 
they are not, the executive is dependent upon 
the legislature for the ordinary means of exe- 
cuting one of his most undisputed prerogatives. 

2. He may nominate only, and, w^ith the advice 
and consent of the Senate, appoint all officers 
established by law, whose appointments are 
not otherwise provided for in the Constitution. 

3. He may be invested, by law, with a power to 
appoint " inferior officers ; " by which is probably 
meant officers inferior to, or at least other than. 



HIS POWERS. 453 

the courts of law, heads of departments, and 
foreign ministers, who are the only others men- 
tioned. 4. He has, by legislative construction 
or grant, the exclusive power of removal, which 
places at his control all officers appointed by 
himself, or others holding at his will. 5. He 
shall commission all the officers of the United 
States. 6. He can fill all vacancies that happen 
during the recess of the Senate, by granting 
commissions, which shall expire at the end of 
their next session. 

§ 518. A vacancy is said to " haj^pen," within 
the meaning of this section, when he removes 
the incumbent. If so, he may take the appoint- 
ment of all the executive officers to himself, at 
any recess of the Senate; and, if no nominee of 
his is confirmed by the Senate during their next 
session, a vacancy will again " happen " on the 
adjournment of the Senate, which he may again 
fill in the same manner. 

§ 519. This construction would place all the 
officers, not permanent by the Constitution, as 
entirely at the disposal of the President as if 
no qualification of the executive j^owerhad been 
attempted by the Constitution. Such a consum- 
mation would, of course, be totally at variance 
with the designs and purposes of the American 
people, by whom it was made. If freely used, 
by a bad man, for personal or party aggrandize- 
ment, such a power would be one of the most 
tremendous engines of mischief that can be con- 



4:54: HIS POWEES. 

ceived under our government. What practical 
check upon such a use of the power is now in 
operation, is not perceived. Of those that might 
be apphed, in case the necessity should arise, 
these three are the most obvious : — 

1. To alter the legislative Acts which place the 
power of removal exclusively in the President. 

2. To provide for the permanent session of 
the Senate. 

3. To exercise the power of impeachment for 
malfeasance in office.* 

* Since this work was sent to the press, the first of these alternatives 
has been adopted by Congress. 



CHAPTEE XXYIII. 

^ THE JUDICIARY. 

. § 520. By Article III., the judicial dejjartment 
of the government is composed of "one Snj)reme 
Court, and such inferior courts as Congress 
may, from time to time, ordain and establish." 
A Supreme Court is ordained by the Constitu- 
tion; and, by Article II., section 2, it is expressly 
required that the President " shall nominate, and 
by and with the advice of the Senate shall ap- 
point, . . . judges of the Supreme Court." All 
other courts are inferior to the Supreme Court, 
and are such as Congress may see tit to create; 
and the judges are aj^pointed in the same man- 
ner. " The judges, both of the Supi'eme and 
inferior courts, shall hold their offices during 
good behavior, and shall, at stated times, re- 
ceive for their services a compensation which 
shall not be diminished during their continuance 
in office." 

§ 521. ]S^evertheless, it has been held by Con- 
gress, that, where courts are established only by 
law, they may be abolished by a repeal of the 

[455] 



456 ' THE JUDICIAL POWERS. 

law; and thus the judges be deprived of then' 
offices and of their compensation, notwithstand- 
ing the Constitution says the offices shall be held 
during good behavior, and the compensation 
not diminished while they are held. This con- 
struction has been followed in most of the States, 
in regard to such courts as were established by 
legislative Acts, and not by their constitutions. 
This department is co-ordinate with the other 
two. "Whatsoever necessary and proper laws the 
ffi'st may make, and the second may take care to 
have faithfully executed, this department may 
administer judicially, in all cases legally brought 
before them. 

THE JUDICIAL POWEES. 

§ 522. The Constitution, after providing for 
the organization of the legislative and executive 
departments, vests in them, respectively, all the 
legislative and executive powers of the govern- 
ment; and proceeds to point out, in terms more 
or less general and particular, certain things that 
they may do, amounting summarily, as to the 
first, to power to make all laws necessary and 
proper for executing the Constitution; and, as to 
the second, to power to execute all laws so made, 
and all other laws of the land. So, in regard 
to this department, after having provided for its 
organization as above, it proceeds to vest in it 
the judicial power, in terms equally broad and 
comprehensive. " The judicial power of the 



THE JUDICIAL POWERS. 457 

United Sttites shall be vested" in its conrts as 
above organized. These are the same words of 
investment that are nsed in regard to the other 
departments, and have never been understood to 
require an additional act of investment, and no 
authority is provided to pei'form such an act, 
but to be of themselves an actual investment; 
and they have always been so considered and 
acted upon, at least by both of the other depart- 
ments in regard to themselves.^ 

§ 523. The whole duty of the courts expressly 
assigned in the Constitution is to exercise the 
judicial power; and they have no other. Con- 
sequently, the Constitution proceeds at once, in 
section 2, to describe and define the extent of 
that power. "The judicial power shall extend 
to all cases in law and equity, arising under this 
Constitution, the laws of the United States, and 
the treaties made, or which shall be made, under 
their authority." This is a broad and general 
statement of the judicial power of the govern- 
ment; and it will be seen in the sequel, that, like 
the general statement of the legislative power 
and of the executive power, it comprehends and 
covers all the items and particulars elsewhere 
mentioned in the Constitution, and a great deal 
more. "Judicial" relates to justice; and "judi- 
cial power " is to distribute and administer jus- 

1 By Article II., section 2, " The President shall be the commander-in- 
chief of tlie^army and navy of the United States." Who shall make him 
so, if the Constitntion does not 1 and who shall vest legislative, executive, 
or judicial power, if the Constitution does not? 



458 THE JUDICIAL POWERS. 

tice, in judicial form, and is assigned to this 
department, in part execution of one of the great 
purposes of the Constitution, — " to establish 
justice." 

§ 524. The form of instituting, bringing, en- 
tertaining, hearing, and deciding controverted 
cases, is defined and settled by the common 
law, as it was imported from England and 
other countries, used and approved here before 
the Constitution, often referred to by it, and 
twice expressly mentioned in it as furnishing the 
existing law, and rule of proceeding. What 
the power is which is judicial in its nature, judi- 
cial in the mode of its exercise, and judicial in 
the conclusiveness of its operation, is not told 
by the Constitution, and is nowhere to be learned 
but from the common law. 

§ 525. " Shall extend to " means shall include, 
comprise, apply to, and provide for. " All cases 
in law and equity " are all suits, civil and crimi- 
nal, involving controverted rights between party 
and party, and instituted in legal form of judi- 
cial proceedings. "Arising under this Consti- 
tution, the laws, . . . and treaties," &c., is 
" mvolving any question . . . under the Consti- 
tution, laws, or treaties of the United States." ^ 
Any question presented by the facts of a case, 
or growing out of those facts, arises under the 
Constitution, &c., when its solution depends 
upon the Constitution, &c., or when it Js to be 

1 3 Story's Com., 507. 



THE JUDICIAL POWERS. 459 

decided, by ascertaining the true meaning and 
construction of any thing in the Constitution, 
laws, or treaties of the United States. 

§ 526. Every such case, whether civil or crim- 
inal, belongs to the judicial power of the United 
States, which is vested ["shall be vested"] in 
the Supreme and other courts of the Union. 
]N^ot that such question is actually in dispute 
between the parties, or is made a point in the 
case, or even that it is capable of being made a 
point in any case. It may be too plain ever to 
have been disputed; or it may have been too 
often adjudicated, or too long practised upon, 
ever to be disputed again. ISTevertheless, if it is 
involved, " forms an ingredient," ^ in the case, so 
that it might be raised, the case belongs to the 
judicial power of the United States. 

§ 527. Thus, if the United States should bring 
an action of assumpsit against A. J., to recover 
damages for a breach of promise in neglecting 
to hang J. D., according to contract, licet scepius 
requisitus, the case would obviously be within 
the "judicial power" of the government; because 
the right of the United States to sue in their 
own courts would be involved in it, and might 
be raised, argued, and decided under the Consti- 
tution and laws of the United States. Though 
the question is too clear to be made at all, though 
it has been practically decided and acquiesced in 
for near a century, and though it may probably 

1 Marshall, C.J., 9 Wheat., 738. 



460 THE JUDICIAL POWERS. 

be the last question that counsel learned in the 
law would think of making in defence of the 
case; yet, as it would be involved, and might be 
disputed, and depends upon the Constitution and 
laws of the United States, the jadicial power 
would clearly extend to it. 

§ 528. In this first and general description of 
the power, no reference whatever is made to the 
character or residence of the parties, to the sub- 
ject-matter of the controversy, to the origin of 
the right in dispute, or to the law on which the 
ultimate adjudication may depend. The parties 
may be citizens of the same State, of diflferent 
States, or of no State at all ; or they may be aliens, 
and not citizens. The subject-matter in dispute, 
the foundation of the right claimed, and the law 
on which the merits depend, are all alike imma- 
terial, in respect to this general limitation of the 
judicial power. The merits of the case may 
depend upon domestic law or foreign law, local 
law or general law, statute law or common law, 
civil law or criminal law, municipal law or mari- 
time law, the law of nations or the by-laws of 
a private corporation, the law of Turkey or the 
law of China. 

§ 529. In relation to the jurisdiction under 
this clause, the only question is, whether the case 
presents, incidentally or otherwise, " any question 
arising under [depending upon, or to be de- 
cided by] the Constitution, laws, or treaties of 
the United States." If it does, it is within the 



THE JUDICIAL POWERS. 461 

"judicial power of the United States," which is 
vested by the Constitution in its courts. These 
words, say the Court, in the case of Osborii v. 
the United-States Bank,^ were "obviously in- 
tended to secure to those who claim rights under 
the Constitution, laws, or treaties of the United 
States, a trial in the federal courts." ^ 

§ 530. And what, it may be pertinently asked, 
are those rights wdthin the jurisdiction of the 
United States, civil, political, constitutional, legal, 
or even natural, so far as they are recognized by 
law, that are not claimed, held, and protected, 
under and by virtue of the Constitution of the 
United States, — the supreme law of the land? 
" Where is the Act that might not be connected 
with the Constitution or laws of the United 
States?"^ If no such right can be found, then 
is the jurisdiction of this department commen- 
surate Avith that of the government, of which it 
forms a co-ordinate portion ; and the duty of the 
government to " establish justice " is as unlimited 
as the power of the people, who made and or- 
dained it for that express purpose. 

§ 531. Is the plaintiff a real or fictitious per- 
son? Has he a right to sue? Has he a right 
to come into this court? Is he a citizen, alien, 
friend or enemy, slave or free, inhabitant or 

1 9 Wheat. Rep. 

2 See also Marbury v. Madison, 1 Cr. Rep.; Martin v. Hunter, 1 
AVheat. Rep. ; Cohens v. Virginia, 6 Wheat R. ; and Gibbous i'. Ogden, 
9 Wheat. Rep. 

3 1 Kent's Com., 319. 



462 THE JUDICIAL POWERS. 

commorant for a day, under the protection of 
our government? Has he any rights imder our 
Constitution? All this lies at the foundation 
of every case, and depends on the law of the 
United States. " The question respecting the 
right to make a particular contract, or to acquire 
a particular property, or to sue on account of a 
particular injury, belongs to every particular 
case. The question forms an original ingredient 
in every cause. Whether it be in fact relied on 
or not, in the defence, it is still a part of the 
cause, and may be relied on. The right of 
the plaintiff to sue cannot depend on the defence 
which the defendant may choose to set up. The 
right to sue is anterior to that defence, and must 
depend on the state of things when the action 
is brought. The questions which the case in- 
volves must determine its character, whether 
those questions be made in the case or not.^ 

§ 532. The 2d section then proceeds to men- 
tion particular classes of cases to which the 
judicial power extends, not by way of an addi- 
tion to, or an enlargement of, the description 
before given, by the name of cases arising under 
this Constitution, &g. ; but rather as instances or 
specimens of the kind of relation in which dif- 
ferent classes of cases may stand to the Consti- 
tution, while yet they come within the judicial 
power, as arising under it. The first of these is, 
" to all cases affecting ambassadors, other public 

^ Opinion of the Court, per Marshall, C. J., in Osborn v. The Bank. 



THE JUDICIAL POWERS. 463 

ministers, and consuls." These officers derive 
their rank, prerogatives, and immunities, from 
the Constitution and laws of the United States, 
the law of nations being a part thereof; and of 
course any question respecting them must arise 
under the same Constitution and laws. This 
would show them to be within the general de- 
scription of the judicial power in the preceding 
clause, without being particularly named, as in 
this. It would not only include them person- 
ally, but all other persons and things that might 
aifect them relatively; and this also must depend 
upon the same Constitution and laws. 

§ 533. The next clause extends the jtidicial 
power "to all cases of admiralty and maritime 
jurisdiction." The admiralty and maritime juris- 
diction depends upon the law of nations; and 
all the rights and duties coming within it, and 
which may become the occasion of controversies 
and cases for litigation in the courts, must arise 
under the Constitution, of which that law is a 
part, modified, as it may be, by other laws and 
treaties of the United States. This clause, of 
course, adds nothing to the judicial power over 
cases " arising under this Constitution," &c., as 
described in the first clause of this section. 

§ 534. The next clause is " to controversies to 
which the United States shall be a party." Some 
criticism has been indulged on the change of 
phraseology here from " cases " to " controver- 
sies," the justice of which is not perceived. 



464 THE JUDICIAL POWERS. 

Surely it cannot be pretended that the judicial 
power can reach any " controversy " till it be- 
comes a " case " for litigation between party and 
party, according to the forms of law. A court 
or judicial tribunal can take no official notice of 
a " controversy " otherwise than in the form of a 
" case." The act that makes it a " case " brings 
it to the official notice of the court, and gives 
them jurisdiction to decide it, if it arises under 
the Constitution. The United States have no 
corjDorate existence, and no right or power to 
become a party in any case, but by virtue of the 
Constitution and laws. Of course every such 
case must " arise under this Constitution," and 
be within its "judicial power" independent of 
this clause. 

§ 535. The last clause of the 2d section is 
"to controversies between two or more States, 
between a State and citizens of another State, 
between citizens of different States, between 
citizens of the same State claiming lands under 
grants of different States, and between a State, 
or the citizens thereof, and foreign states, citi- 
zens, or subjects." The term "foreign states," 
in this clause, means foreign nations, indejDendent 
sovereign communities, co-ordinate and co-equal 
members, with the United States, of the great 
family of states or nations, under and by virtue 
of the law of nations. They are not dependent 
upon the United States, owe no allegiance to it, 
and no deference to our Constitution. They are 



THE JUDICIAL POWERS. 465 

foreign, alien, outside, and independent of the 
United States. 

§ 536. The word "States," used alone in the 
same clause, refers to and designates a different 
class of communities and political bodies of a 
totally different character, — not States by the 
hiAV of nations, or members of the community 
of States and family of nations; but only States 
under and liy virtue of the Constitution of the 
United States and within the Union, component 
parts of the nation, and dependent upon, and 
subject to, the Constitution and laws thereof. 
The States thus designated in the clause are 
States only in name and by virtue of the Con- 
stitution, beiiig subdivisions of the national do- 
main, and constituent portions of the country. 
They are subordinate parts of the whole body 
politic, and might just as appropriately have 
been called by another name, without any change 
of character. 

§ 53.7. Such being the diverse character of the 
two different political bodies mentioned in the 
clause, it is obvious that no " controversj^ " or 
" case " can occiu* among them or their respective 
members, as such, that does not "arise under 
this Constitution, or the laws and treaties of the 
United States." Their respective rights, and 
even existence, as separate political agents, cor- 
porations, depend entirely upon the Constitution, 
and the law of nations, which is a part of it. 
]^o question concei-ning them, or their legal or 

30 



4:66 ' THE JUDICIAL POWERS. 

equitable rights, can be presented that does not 
directly involve and " arise nnder this Constitu- 
tion." This principle was thoroughly examined 
and fully established in the case of Osborn v. 
the United-States Bank, before cited, where it 
was held by the Supreme Court, that the judicial 
jDOwer of the United States extended to cases 
brought by the Bank, by the Postmaster-Gene- 
ral, &c., in consequence of their being consti- 
tuted by, and owing their existence and all their 
rights as corporate bodies to the laws of the 
United States. 

§ 538. The whole extent of the "judicial 
power" of the government is described in this 
1st cl., 2d sect, of Art. 3. In the first and third 
instances, it is described by the character of 
the law out of which the case arises, and by 
which it may be decided ; in which at least some 
part of the case is involved. In both instances, 
the law is that of the United States. In the 
other cases, it is described by the character of 
the parties litigant, without any reference to the 
laws, foreign or domestic, by which the decision 
may be governed. In these last cases, where 
the jurisdiction depends on the character of the 
parties, it will be noted, that the parties are 
indebted for their required character to the 
Constitution and laws of the United States. 
Consequently, this class is brought within the 
description of the other class, as " cases arising 
under the Constitution and laws," and may be 



THE JUDICIAL POWERS. 467 

decided by the construction that shall be judi- 
cially put upon them. 

§ 539. It will also be noted, that all the cases 
of the first class, depending on the character of 
the law, depend on the Constitution itself; be- 
cause the laws and treaties of the United States 
owe all their authority to the Constitution, and 
the law of nations is expressly made a part of 
it. So that all the cases to which the judicial 
power of the United States applies are " cases 
arising under this Constitution;" and the other 
parts of the section are only exemplifications, 
reduplications, or explanations of the first and 
broad general description of the whole judicial 
power. In this respect it is like the terms in 
which the powers of the other departments are 
delegated; giving the general power of the de- 
partment in terms broad enough to cover all the 
power of that sort belonging to the government, 
and then superadding certain particulars serving 
as landmarks, exemplifications, or specimens, 
showing the character of the department and 
the nature of its duties, as distinguished from 
the others. Thus the judicial department is co- 
equal and co-ordinate with the legislative and 
executive departments, construing and applying, 
" to all cases in law or equity," all the law the 
Constitution has made, or authorized to be made 
and executed, for efi:ecting the objects for which 
the government itself was ordained and estab- 
lished. 



468 THE JUDICIAL POWERS. 

§ 540. In cl. 2, sect. 2, art. 3, the Constitution 
assigns snch portion of the judicial power, so 
vested in the department, as it deems expedient, 
to the Supreme Court, leaving all the rest to be 
exercised by " such inferior courts as Congress 
may, from time to time, ordain and establish." 
The portion assigned to the Supreme Court is 
under two heads, — original and appellate. 

§ 541. 1st, Original. — "In all cases affecting 
ambassadors, other public ministers and consuls, 
and those in which a State shall be party, the 
Su|)reme Court shall have original jurisdiction." 
"Shall have . . . jurisdiction" is peremptory; 
and the use of this language shows, that the 
judicial power, of which this is a part, had 
already been vested in the department. If the 
actual investment of it required any other agen- 
cy, or any other act than had been performed, 
then this peremptory assignment of a portion 
of it to a particular court could not have been 
made till such act had been performed; for, 
otherwise, it could not be known that it ever 
would be performed, and so this peremptorj^ 
assignment fail. " Shall be vested " can mean 
nothing else than is vested. It has been decided 
by the Court, that this " original jurisdiction " 
can neither be enlarged nor diminished: because, 
if enlarged, it would detract from the constitu- 
tional appellate jurisdiction; and, if diminished, it 
would so far deny all jurisdiction to the Supreme 
Court, which can take appellate jurisdiction only 



THE JUDICIAL POWERS. 469 

in "other cases." It must also be exclusive; 
because, if a case of this kind can originate in 
any other court, this court, not being able to take 
appellate jurisdiction, could have no jurisdiction 
at all. 

§ 542. 2d, Appellate. — The next sentence is, 
"In all other cases before mentioned, the Supreme 
Court shall have appellate jm-isdiction, both as 
to law and fact, with such exceptions, and under 
such regulations, as the Congress shall make." 
The cases of " original jurisdiction," and the " all 
other cases before mentioned," are all the cases 
to which the judicial power of the United States 
extends; and when it is said that the Supreme 
Court " shall have " original or appellate juris- 
diction over the whole of them, it only reiterates 
what it had distinctly said in the first section of 
the Article, — that all the judicial power of the 
United States " shall be [is] vested " in its courts. 
The " appellate " portion, as well as the " origi- 
nal," is vested peremptorily, entirely, and h'rev- 
ocably, but subject to "such excejDtions, and 
under such regulations, as the Congress shall 
make." 

§ 543. Congress, then, may " except " some 
cases out of the appellate jurisdiction of the 
Supreme Court. But this exception show^s that 
without it the whole jurisdiction is vested, and 
the exception must be in favor of some other 
court of the United States; otherwise the cases 
excepted would be left unprovided for. They 



470 THE JUDICIAL POWERS. 

cannot make an exception ont of the judicial 
power of the United States; or, in other words, 
they cannot diminish, abandon, or rehnqnish any 
portion of the judicial power of the government 
as vested hy the Constitution, any more than 
they can do the same to the executive power, or 
to their own. 

§ 544. They once undertook to resolve, that 
they had no right " to interfere in the emancipa- 
tion of slaves, or with their treatment in any of 
the States; " and, at another time, that they had 
no right to abolish slavery in the District of 
Columbia. But neither of these altei'ed the 
Constitution. As soon as they had a disposition 
to do the last, they did it; and, if the disposition 
had been equally strong to do the first, they 
would, as they ought, have done that also. As 
it was not, the people did it for them. 

§ 545. Their authority was the same in both 
cases. Congress can legislate only by the pow- 
ers conferred by the Constitution; and these are 
the same over the whole land. If they had 
power to " secure the blessings of liberty " to the 
people of the United States in the District of 
Columbia, they had the same in all the States 
and Territories of the Union. They have no 
more right to withhold from the executive or 
from the judiciary the appropriate means of 
protecting every man against slavery, or of 
securing to every citizen all the privileges and 
immunities of citizenship in every State, than 



THE JUDICIAL POWERS. 471 

they have to sa}^ that they will not, and their 
successors shall not, "make all laws necessary 
and proper for carrying into execution all the 
powers A'ested in the government, or any depai't- 
ment fir officer thereof." And they have no 
more right to say, that the judicial department 
shall not have jurisdiction over every case, — "all 
cases arising under this Constitution," — together 
wdth the proper means of executing it, than they 
have to accomplish either of the other inadmis- 
sible purposes. 

§ 546. It is the duty of Congress to give effect 
to the whole constitutional jui'isdiction of the 
depai'tment, and so to organize the courts as to 
render them adequate to its execution. They 
have no power to curtail or restrict, or otherwise 
qualify, it in any respect. They may remove or 
"except" some cases out of the appellate juris- 
diction of the Supreme Court, by giving it to 
some other court of the United States in which 
the judicial power is vested, but not by abolish- 
ing it, or leaving it to be exercised or not by 
any body else. They may also make "regula- 
tions;" that is, prescribe rules by which the 
jurisdiction shall be exercised, so as to render it 
efficient and effectual for its purposes, but in no 
case to limit or obstruct it. To regulate a juris- 
diction is to make rules for its exercise. 

§ 547. The judicial power is exactly defined, 
and vested in the courts, by the Constitution; 
and the only power conferred on Congress by 



472 THE JUDICIAL POWERS. 

this clause is to make exceptions to, and regula- 
tions for, the appellate jurisdiction of the Su- 
preme Court. If they do neither, the Supreme 
Court has the whole ajDpellate power by the 
Constitution. If they make ^'^ exception^," they 
must give the cases excepted to some inferior 
court; for the whole "judicial power of the 
United States shall be vested in the Supreme 
Court, and in such inferior courts as Congress 
may . . . ordain and establish." If they make 
"regulations," the jurisdiction must be exercised 
according to the rules so prescribed; otherwise, 
the jurisdiction must be exercised in conformity 
to such rules as the court itself may prescribe, 
according to law. 

§ 548. It is jDroper, though perhaps unneces- 
sary, to remark, that this commentary on the 
first and second sections of the third Article 
has been made on the plain and obvious meaning 
of the words of those sections, as they stand in 
the Constitution, irrespective of any practice of 
the government on the subject in its past history. 
It was the policy of the earliest administrations 
not to subject the machinery of the new gov- 
ernment at once rashly to a full head of steam. 
This was for the double purpose of not exposing 
the public tranquillity to any unnecessary strain, 
by suddenly adopting too many new measures 
and novel appliances to the daily avocations and 
internal relations of the people, and of gaining 
time for themselves from the immediate pressure 



THE JUDICIAL POWEKS. 473 

of the external relations of the country, in which 
they found themselves deeply involved, for the 
full consideration and experience necessary to 
enahle them rightly to understand, and wisely 
to adapt, all the powers of the new Constitution 
to meet the wants and answer the expectations 
of the people of the United States. 

§ 549. The same policy was continued under 
succeeding administrations, for the less honoi'a- 
ble purpose of prolonging the imbecility of the 
genei'al government; and leaving to the subordi- 
nate governments the entire management of 
those peculiar domestic institutions and aristo- 
cratic usages and assumptions, which the "just- 
ice," " welfare," and " liberty " of the people 
required and enjoined the national government to 
control and rectify. Thus it has happened, that 
the third department of the government has never 
been organized in a manner to render it compe- 
tent and fully adequate to the exercise of "the 
judicial power of the United States," which is 
vested in it by the Constitution. 

§ 550. This is painfully evident at the present 
moment (1866), when the government has no 
other means than its military power for securing 
to its own citizens life, liberty, or property in 
those places where the State governments have 
been disorganized, or are unable or unwilling to 
administer the laws of the United States, and 
" establish justice ; " for which purpose, among 
others, the government itself was ordained by 



474 THE JUDICIAL POWERS. 

the American jDeople. The statutes seem to have 
been framed upon the mistaken theory of confer- 
ring only such jurisdiction as they pleased, where 
they pleased, rather than of making " excep- 
timis " to, and " regulations " or rules for, the 
exei'cise of the appellate power, as already con- 
ferred; and then constituting "tribunals inferior 
to the Supreme Court " for the exercise of the 
remaining "judicijal power of the United States." 

§ 551. For instance, the first judicial Act 
passed Se^Dt. 24, 1789, is entitled " An Act to 
establish the judicial courts of the United 
States ; " apparently forgetting that the Supreme 
Court was established by the Constitution, and, 
if it was not, that no power was given to Con- 
gress to establish one, but only " to constitute 
tribunals inferior to the Supreme Court." And 
again, by the thirteenth section of the statute, 
" The Supreme Court shall have appellate juris- 
diction from the circuit coui'ts, and courts of 
the several States, in the cases hereinafter spe- 
cially provided for." "Which cases so provided 
for are far within the boundaries of the Consti- 
tution, which extends their appellate jurisdiction 
to " all cases within the judicial j)Ower of the 
United States," except those whereof they have 
original jurisdiction, and such other " excep- 
tions " only as " Congress shall make." 

§ 552. All our judicial legislation has been 
formed upon the same model; and Congress, 
instead of doing the only things they were an- 



THE JUDICIAL POWEKS 475 

thorized to do on this subject, — to wit, to make 
"exceptions" to, and rules or regulations for, 
the exercise of the appellate jurisdiction of the 
Supreme Court, and " to constitute inferior tribu- 
nals " for the residue of the "judicial power of 
the United States," — have assumed to dole out 
from time to time, both to the Supreme and in- 
ferior courts, only a miserable pittance of the 
jurisdiction actually vested in them by the Con- 
stitution. This course is doubly injurious to the 
people and their government. If Congi-ess con- 
sidered the whole judicial power vested, as it 
is, in the Supreme and inferior courts, and pro- 
ceeded, in the exercise of their constitutional 
duty, to make "exceptions" from the appellate 
jurisdiction of the Supreme Court, they must 
necessarily provide for its exercise by some 
inferior court by them constituted, so that the 
indei^endence and integrity of the judicial de- 
partment might not be infringed. 

§ 553. But, by assuming that the jurisdiction 
of the courts is only by legislative grant, they 
not only degrade the character of the judiciary 
as a co-oi-dinate department of the government, 
but they absolutely throw away so much of " the 
judicial power of the United States" as they 
fail to provide the means of exercising. In this 
manner a large proportion of " the judicial power 
of the United States " has been, and is to this 
day, practically abrogated and annulled, by the 
neglect of Congress " to make all laws [or any 



476 THE JUDICIAL POWERS. 

laws] necessary and proper for carrying [the 
whole of it] into execution." "Whatever is done 
in virtue of the Constitution or by its authority, 
directly or indirectly, is said, in legal language, 
to be done under the Constitution; in the same 
manner as an authority given by law is said to 
be exercised under the law. 

§ 554:. There must be a constitutional way to 
execute the Constitution, for the peoj^le made it 
to be executed; and, whenever a dispute or dif- 
ference arises about any thing done or omitted 
by virtue of its provisions, it is said to arise 
under the Constitution; and this whether the 
authority in question is more nearly or more 
remotely derived from it. The States themselves 
only exist, as political bodies, under and by vir- 
tue of the Constitution of the nation; and their 
governments have no authority or power inde- 
pendent of their recognition by the United States 
as subordinate republics and parts of the nation. 
They can have no independence or sovereignty 
while remaining in the Union. 

§ 555. They are not known or recognized by 
the law of nations, or any other law but the 
Constitution of the United States, and cannot be 
while they are a part of it. There is no such 
thino^ as a nation within a nation. If such a 
dispute or diiference assumes the form of an 
action, civil or criminal, in law or equity, it be- 
comes a "case" within the meaning of the 
2d section of Article III., and so within 



THE JUDICIAL POWERS. 477 

" the judicial power of the United States." As 
the Constitution exjjressly recognizes and adopts 
the law of nations, the common law, and the 
admiralty and maritime law, as parts of the law 
of the land, it would seem that cases arising 
under those laws, within the jurisdiction of the 
United States, were necessarily included in the 
judicial j^ower, as arising under the Constitution 
and laws of the United States. Such, we have 
seen by the Proclamation of April 22, 1792, was 
the understanding of the first administration of 
our government. It was the understanding of 
the judiciary also, as is manifest by the numer- 
ous charges delivered by them to the grand 
juries about that time, in relation to violations 
of the law of nations, when no statute existed 
defining or punishing such violations. Such 
would seem also to have been the understanding 
of the legislative department. 

§ 556. In the Judiciary Act of Sept. 24, 1789, 
where the inferior courts are constituted in obe- 
dience to the Constitution, it is enacted, section 
9, " That the district courts shall have, exclu- 
sively of the courts of the several States, cogniz- 
ance of all crimes and offences that shall be 
cognizable under the authority of the United 
States, committed within their respective dis- 
tricts or upon the high seas," where only certain 
punishments are to be inflicted; "and shall also 
have exclusive original cognizance of all civil 
causes of admiralty and maritime jurisdiction, 



478 THE JUDICIAL POWERS. 

. . . within their respective districts, as well as 
upon the high seas; . . . and shall also have cog- 
nizance, conciirrent with the courts of the several 
States or the circuit courts, as the case may be, 
of all causes where an alien sues for a tort only 
in violation of the law of nations or a treaty of 
the United States; and shall also have cogni- 
zance, concurrent as last mentioned, of all suits 
at common law where the United States sue, and 
the matter in dispute amounts, &c. ; and shall 
also have jurisdiction, exclusive of the courts of 
the several States, of all suits against consuls or 
vice-consuls, except for offences above the de- 
scrijDtion aforesaid." By section 11 it is enacted, 
"that the circuit courts shall have original 
cognizance, concurrent with the courts of the 
several States, of all suits of a civil nature, at 
common law or in equity. Where the matter in 
dispute exceeds, &c.; and shall have exclusive 
cognizance of all crimes and offences cognizable 
under the authority of the United States, ex- 
cept," &c. 

§ 557. This statute was passed at the first ses- 
sion of the first Congress under the Constitution, 
as a part of the organization of the government, 
before the United States had any jurisprudence, 
civil or criminal, or any code of law or equity, 
other than the Constitution and the laws recog- 
nized, continued, and adopted by it. " Cogniz- 
able under the authority of the United States," 
is only a statute substitute for the constitutional 



THE JUDICIAL POWERS. 479 

jDhrase, within " the judicial power of the United 
States." What then, were, the "crimes and 
offences," and "the suits of a civil nature, at 
common law or in equity," " cognizable under 
the authority of the United States," or within 
" the judicial power of the United States "? Un- 
doubtedly just what they are now, — "all cases 
in law and equity arisiug under this Constitution, 
the laws and treaties of the United States." The 
United States had then no "law or equity," but 
what was created or continued by the Constitu- 
tion. 

§ 558. Thwe w^ere no statutes rendering a 
man liable to prosecution, judgment, and pimish- 
ment, criminally or civilly, for any act whatever; 
defining the injuries which might be remedied 
by public prosecution or private suit, or pre- 
scribing any mode by which either could have 
been incurred or pursued. N^o previously exist- 
ing law or right or duty was repealed or abro- 
gated by the Constitution, but such as were so 
impliedly, by being superseded, or rendered in- 
compatible with it. The law of nations, the com- 
mon law, the admiralty and maritime law, and a 
few Congressional ordinances, were expressly or 
impliedly recognized and continued in force, and 
were so treated by the new government. The 
common law is so in this very definition of " the 
judicial power," as well as in divers other places. 
" Law and equity " are two distinct systems of 
jurisprudence, known only to and by the com- 



480 THE JUDICIAL POWERS. 

mon law; and this judicial Act, in pursuance of 
the same idea, speaks expressly of the " common 
law and equity " as different rules of decision in 
cases within the judicial power of the United 
States. 

§ 559. Independent of any statute jurisdic- 
tion, as soon as an inferior court was instituted, 
all the judicial power of the United States was 
vested, by the Constitution, in its own courts; 
the inferior court taking all that the Supreme 
Court could not. "What was " cognizable under 
the authority," or within " the judicial power," 
of the United States, was settled %y the Consti- 
tution, and the whole of it vested [" shall be 
vested"] in its courts. "When the legislature 
had, in obedience to the Constitution, instituted 
a court or courts for that portion of the judicial 
power which was denied to the Supreme Court, 
viz., all the original jurisdiction of the govern- 
ment, except " in cases affecting ambassadors, 
other public ministers and consuls, and those in 
which a State shall be party," — what authority 
had they to go further, and say that the courts 
thus constituted should not execute the power? 

§ 560. All that seemed to be required of Con- 
gress was " to constitute such tribunals inferior 
to the Supreme Court," as were appropriate to 
the duty ; and, when they had made an admiralty 
court and a common-law court, if it was found 
that their duties were too arduous or in danger 
of interfering, then to make such new distribu- 



TIIE JUDICIAL TOWERS. 481 

tion, regulation, or additional provision as the 
case might require. But that the admiralty 
court could not take the admiralty jurisdiction, 
and the common-law court could not take the 
common-law jurisdiction, both civil and criminal, 
expressly vested in the courts of the United 
States by the Constitution, without further stat- 
ute authority, would be likely to appear as ob- 
scure and mystical logic as it appeared to Mr. 
Justice Story and Chancellor Kent.^ 

§ 561. A diflerent view of the subject, how- 
ever, was early inaugurated, and, in accordance 
with the wishes of those who favored the gen- 
eral purpose of reducing the pi-erogatives of the 
nation to the lowest possible fraction, and leav- 
ing every thing to depend on the local agencies, 
was brought into practical operation, and, with- 
out examination, has been successfully retained 
to the present time. The case of the United 
States V. Hudson & Goodwin ^ was a political 
case, involving a most important constitutional 
principle, decided without argument, with little 
apparent judicial examination, by a divided court, 
and in recognized accordance with prevailing 
popular clamor. Mr. Justice Johnson, who de- 
livered the short opinion, says, "We consider 
the question as having been long since settled 
in public opinion." He also mentions " the prev- 
alence of opinion in favor of the negative of 
the proposition;" and states the question thus: 

1 1 Gal. R., 488 ; 1 Kent's Com., 320. 2 7 Cr. Rep., 32. 

31 



482 THE JUDICIAL POWERS. 

" Whether the circuit courts can exercise a com- 
mon-law jurisdiction in criminal cases?" He 
adds, that he " states it thus broadly, because a 
decision on a case of libel will apply to every 
case in which jurisdiction is not vested in those 
courts by statute." 

§ 562. So, though the " question " is very broad, 
the " decision " is to be much broader than the 
question. The case presented only a prosecution 
for libel. The " question," as stated, applied to 
any criminal prosecution at common law. But 
the " decision " was intended to apply, and does 
apply, so far as it is considered a valid exposition 
of the Constitution, not to criminal cases only, 
but to civil cases; and not only to those arising 
under the common law, but to all cases, civil or 
criminal, in law or equity, arising under this Con- 
stitution, the law of nations, the admiralty and 
maritime law, or any other law except statute 
law. That portion of the court who concur 
with Judge Johnson in this opinion, and who 
are not named, ground it entirely on this as- 
sumption, that the inferior courts constituted by 
Congress " possess no jurisdiction but what is 
given them by the power that creates them." 

§ 563. The Constitution says,-^ the inferior 
courts, with the Supreme Court, shall have the 
whole "judicial power of the United States;" 
and then proceeds to define accurately the por- 
tion belonging to the Supreme Court, which 

1 Article III., section 1. 



THE JUDICIAL POWERS. 483 

certainly Congress could not increase, "and of 
which," tliis opinion says, with as near an ap- 
proach to accuracy as would com})ort with the 
association, " the legislative powxn- cannot de- 
prive it."^ It is, then, as certain as logic, that, 
by the Constitution, these Congi"essional tribu- 
nals, whether one or more, must possess all 
" the judicial power of the United States," ex- 
cept what belongs to the Supreme Court. The 
docti-ine, according to the two statements, stands 
thus : By the Constitution, the inferior tribunals 
shall have all " the judicial power of the United 
States," but what is vested in the Supreme Court. 
By this decision, they shall have " no jurisdic- 
tion but what is given them by " Congress. 
This comes as near to a tlirect contradiction in 
terms as would be consistent with judicial cour- 
tesy and official decorum. As to authority, as 
the last was only authorized by a part of the 
court, the Constitution may perhaps, at some 
future time, be allowed to prevail. 

§ 564:. Foiu' years afterwards, in 1816, the 
question was again presented to the court, in 
the case of the United States v. Coolidge.^ 

1 We have seen, however, that, by the 13th section of the Judiciary 
Act, Congress attempted, and probably with success, to restrict the appel- 
late jurisdiction of the Supreme Court (which by the Constitution extends 
to all cases in law or equity, civil or criminal, within the judicial power 
of the United Stiites, and not included in their original jurisdiction) to 
appeals " from the circuit courts and courts of the several States, in the 
cases hereinafter specially provided for ; " which may be few or many, 
and increased or diminished at the pleasure of the legislature. 

2 1 Wheat. R., 415. 



484 THE JUDICIAL POWERS. 

Mr. Justice Johnson then said for the court, 
" Upon the question ... a difference of opinion 
has existed, and still exists: . . . we should, 
therefore, have been willing to have heard the 
question discussed." But the defendant did not 
appear, and the Attorney- General declined to 
argue it, as his predecessor had done in the 
former case. " Under these circumstances," 
continued the judge, "the court would not 
choose to review their former decision." The 
learned and elaborate opinion of Mr. Justice 
Story in the circuit court ^ was thus overruled, 
on the sole authority of the former case, with- 
out an additional sentence of reasoning to the 
meagre page in that case, by a divided court, 
and again without argument or examination. 
The court plainly invited an argument, and al- 
most intimated a wish to abandon the narrow 
ground of the former opinion. But it was mani- 
fest, that the Administration, represented by the 
Attorney- General, did not favor it, and the court 
w^ould not volunteer a review of the question. 

§ 565. So it has stood for fifty years, and so it 
stands to-day, without an effort on the j^art of 
any branch of the government to change it. 
Thus the government, in the same spirit and for 
the same purpose that it has neglected and de- 
clined to exercise many of its important powers 
for the benefit of the people, has absolutely dis- 
claimed and abjured all power to " secure the 

1 1 Gal. Rep., 433. 



THE JUDICIAL POWERS. 4S5 

blessings of liberty," and practically abrogated 
and thrown away a large proportion of their 
power and duty to "establish justice." As the 
laws now stand and are construed by them- 
selves, their own judges have no legal protec- 
tion for life, liberty, property, or reputation, in 
the performance of their official duties in their 
own circuits; their citizens are said to be shot 
down in their own dwellings, almost daily in 
some places, with impunity, and w^ithout any 
provision of judicial remedy ; and even their 
executive officers, civil and military, soldiers, 
agents, servants, and citizens of all grades, are 
held liable to be politically disfranchised, per- 
secuted, and outlawed, by the agents of subor- 
dinate local governments, for fidelity and loyalty 
to the Union; and all this not only without trial 
and punishment, but without even a liability to 
the legal right of complaint and judicial exami- 
nation under the national authority. 

§ 566. Chancellor Kent, in commenting on the 
case last cited, says, " The admiralty jurisdiction 
of the Federal courts is derived expressly from 
the Constitution; and criminal cases belonging 
to that jurisdiction l^y the common law, and by 
the law of nations, might have been supposed to 
be cognizable in the admiralty courts, without 
any statute authority. If the common law be a 
rule of decision in the exercise of the lawful 
jurisdiction of the Federal courts, why ought it 
not to apply to criminal as well as to civil cases, 



486 THE JUDICIAL POWERS. 

and upon the same principle, when jurisdiction 
is clearly vested?" 

§ 567. "What he says of the admiralty juris- 
diction is equally true of all the other jurisdic- 
tion of the Federal courts, and his pungent 
question, mutatis mutandis, equally applicable to 
all other cases coming within it.^ It will be diffi- 
cult to give a satisfactory answer to that ques- 
tion. If the courts should take the jurisdiction 
thus conferred, without further legislation, they 
" would," he continues, " of course, in the de- 
scription, definition, prosecution, and punishment 
of the offence, be bound to follow those general 
principles and usages which are not repugnant 
to the Constitution and laws of the United 
States, and which constitute the common law of 
the land, and form the basis of all American 
jurisprudence." ^ 

§ 568. In the case of Robinson v. Campbell,^ 
the Court say, that " the remedies in the courts 
of the United States are to be at common law 
or in equity, . . . according to the principles of 
common law and equity, as distinguished and 
defined in that country from which we derive 
our knowledge of those principles." The juris- 
diction of all cases, civil and criminal, at com- 
mon law and equity, coming within the judicial 
power of the United States, is contained in the 
same grant; and the same principles ought to 
govern its exercise. It may be hoped, that, 

1 1 Kent's Com., 320. '^ 3 Wheat. Eep., 212. 



TUE JUDICIAL POWERS. 487 

under better auspices, a more liberal construc- 
tion of the judicial power than has heretofore 
been given may yet ultimately prevail, for the 
establishment of "justice," and the security of 
" the blessings of liberty " " to ourselves and our 
posterity." Cases arising under "the laws of the 
United States," have been substantially restricted 
to the narrow limits of the legislative Acts of 
Congress, as though the nation knew, and the 
Constitution recognized, no other law. 



CHAPTER XXIX. 

THE STATES. 

§ 569. The Constitution having been ordained 
and established by the people of the United 
States, for themselves and their posterity, as the 
supreme law for the whole land and every part 
thereof, and made fully adequate to the preser- 
vation and perpetuation of the Union, — that is, 
to its own preservation and defence, — and to 
provide for all the other exigencies of government 
specially mentioned therein; and having author- 
ized and required the different departments of 
its government to make, apply, and execute 
" all laws necessary and proper " for the accom- 
plishment of those purposes, — it follows inevita- 
bly, that there can be no other supreme law or 
independent sovereignty within its domain. . The 
subdivisions actually existing, or recognized and 
authorized by the Constitution, are States, Ter- 
ritories, governmental district, fortresses, dock- 
yards, &c. ; over all of which, as component parts 
of the United States, the Constitution extends 
equally. 

[488] 



THE STATES. 489 

§ 570. But the right of citizens to participate 
in the government by the elective franchise, is 
reserved exchisively to those who are also citi- 
zens of some particular State, in distinction from 
those who belong to other parts of the country. 
This WHS not because all those parts were ex- 
pected to become States, for some of them never 
could, consistently with the purpose for which 
they were held; nor because the citizens, as 
such, had not equal lights with all others: but 
because the Territories, which alone were capal^le 
of ever becoming States, had neither the popu- 
lation nor the organization necessary to enable 
them to perform the duties, or exercise the privi- 
leges, of States y and it was provided, that, when 
they were so, they might be admitted thereto 
under the Constitution. 

§ 571. The original States were admitted, by 
name, to a participation in the government by an 
ex^^ress provision of the Constitution itself, if 
they chose to accept it, by a .vote of their people 
adopting that instrument. They were not com- 
pelled to perform the duties of States, without 
the voluntary consent of the people ; neither 
were they absolved from their relations to the 
nation or its government, whether they chose 
to participate therein or not. The Territories, 
also, under proper circumstances, had the same 
right, and the same freedom from compulsion, 
by solemn compact^ with the old government, 

1 Ordinance of 1787. 



490 THE STATES. 

which the new government was reqmred to ful- 
fil,^ though the appropriateness of the circum- 
stances must be submitted to the discretion of 
Congress.^ It is obvious that a popular govern- 
ment, — a government by the people, — a repub- 
lican government, in fact, cannot be sustained in 
a State entirely by external agency. If a com- 
petent portion of the people are not capable, 
morally, intellectually, and physically, to admin- 
ister such a government under the Constitution, 
the necessary consequence is, that, as they must 
be governed, they must all be subjects, and not 
participants. 

§ 572. This view of the subject attracted early 
attention, when the Constitution was before the 
people for their adoption. ]!^ine States were re- 
quired to put the government in operation, and 
eleven actually did so. It became a prominent 
inquiry among the opponents, what would be 
their condition in a dissenting minority ? and 
the friends of the Constitution refused to discuss 
it, because, they said, it was a delicate question. 
But why was it a delicate question? It might 
soon become practical, and, if it did, would be 
very important. It was delicate in reference to 
the pending action. Their object was to induce 
every State voluntarily to adopt itj and to an- 
nounce, beforehand, what would be the conse- 
quences of a refusal, might be construed into a 
threat, and so obstruct the attainment of the 

1 Article VI., section 1. 2 Article V., section 3. 



THE STATES. 491 

desired object. Therefore, our fixthers refused 
to discuss the question hypothetically. 

§ 573. Rhode Island was not even represented 
in the Convention, and, with K'orth-Carolina, 
refused, till after the government went into ope- 
ration, to participate in it. There is little room 
for doul)t, that ]N^ew York and Virginia would 
have done the same, if, by their refusal, they 
could have defeated the measure.^ But they 
hesitated to be left in that position. Both Rhode 
Island and !N^orth Carolina were component parts 
of the nation, and had been from the first for- 
mation of the Union in 1774; and no practical 
statesman will admit for a moment that they 
could have been permitted, by a permanent re- 
fusal, to take part in the new government, to 
constitute themselves independent foreign na- 
tions in the heart of the Republic. They must 
necessarily submit to the government of the 
country, wiiether they participated in it or not. 
This rendered the question, in the beginning, an 
extremely delicate one for the fi-iends of the 
Constitution, though the obvious answer to it 
had doubtless a commanding influence in the 
end. It will have a similar influence in the future, 
if there is virtue enough in the government and 
people to remain firm and faithful to themselves 
and to the Constitution of their adoption. 

1 It is true, that the fact that New Hampshu-e, the ninth State, had 
adopted the Constitution five days before, was not positively known in 
Virginia at the moment of taking the final vote ; but it was known that 
such a result was not doubtful. 



492 THE STATES. 

§ 574. In this manner the origmal States, hav- 
ing local governments already established nnder 
the auspices of the United States, came nnder the 
Constitution, by the legal and voluntaiy action 
of the people adopting it, and thereby annulling 
every thing in their own institutions and laws 
incompatible with it. Future States should be 
received in a similar manner, whether formed 
from unorganized territory or from States dis- 
organized by rebellion, — with this difference, 
that as in this last case there is no existing local 
government through which the will of the ]3eo- 
ple can be lawfully expressed and certified, it 
becomes proper, if not essential, that preliminary 
steps for that purpose should be authorized by 
the general government. The idea of a State, 
whether under the Constitution or outside, in- 
volves the necessity of territory, population, and 
government, — all equally and absolutely essen- 
tial. The first two may be said to constitute the 
body, and the last the head, which is as neces- 
sary to the body politic as it is to the natural 
body; for in either case, if the head is off, the 
body is dead. 

§ 575. In regard to population and territory, 
for a State in the Union, no qualifications are 
mentioned ; even proximity or juxtaposition is 
not expressly prescribed. But in regard to gov- 
ernment the qualifications are specially pre- 
scribed; so that a State in the Union may as well 
exist without territory or population, as without 



THE STATES. 493 

government; and without any government, as 
well as with a monocracy or any other diftei*ent 
from what the Constitution requires. A com- 
munity without this cannot be entitled to the 
privileges and immunities of a State, or exercise 
the rights or perform thi^. duties of a State in the 
Union ; not because they are not in the Union, 
but because they are not a State, and cannot 
be, till they have a constitutional govermnent, 
legally approved, and voluntarily adopted and 
administered by the people, or so many of them 
as the government may adjudge it safe to recog- 
nize and trust as such. Until so admitted to a 
participation in the government, every part of 
the national domain is subject to the exclusive 
legislation of Congress, guided by the principles 
of the Constitution, and controlled by the pur- 
poses expressly announced in its introductory 
and enacting clause. 

§ 576. Adequate provision was made for the 
voluntary admission of every State that had 
been previously authorized or recognized by the 
Revolutionary government, and for the futui"e 
formation and admission of similar organizations 
under the authority of Congress. But no pro- 
vision was made for any indej^endent organiza- 
tion within the United States. Even the Indian 
tribes, though excused from the duties of citizens 
while retaining their tribal relations, are subject 
to the government, and have been so treated, 
sometimes with great injustice. Still they must 



4:94 THE STATES. 

be governed; and, if they will not govern them- 
selves in accordance with the peace and welfare 
of the citizens of the United States, they never- 
theless, from necessity, will be governed, as they 
must, or exterminated. If any others are in- 
clined to j)lace themselves in the same predica- 
ment, by making themselves savages, they — • 
"may profit by the example."^ 

§ 577. "When the people of the original States 
adopted the Constitution, they voluntarily be- 
came subject to it, with such qualification and 
curtailment of their own, as that instrument, 
and " all laws necessary and proper for its exe- 
cution," might require. Those which have been 
or may be admitted afterwards, where the quali- 
fication and curtailment are not superseded, as 
they always should be, by express limitations of 
their own, are received on the same terms, be- 
cause they could not be received without them. 
In all other respects, the original States are in 
the same relative j)osition to the United States 
as they occupied when the Constitution was 
formed. The subsequent States are just where 
the Constitution placed them, at their own re- 
quest. 

§ 578. This brings us to the inquiry, "What 
was legally the political condition of individual 
States in the Union, when the Constitution was 
made? 

This may be answered generally, by saying it 

1 Patrick Henry. 



THE STATES. 495 

was then just what it was when those States, as 
Colonies, were first organized under the Union. 
The division of the British empire rendered the 
people of the American Union jnst as much a 
sovereign and independent nation as it left the 
people of the Euroj^ean portion. The only differ- 
ence was, that they had the government, and we 
had none. They retained it because it acted with 
them, and we rejected it because it acted against 
us. By the cotemporaneous series of acts by 
which the British empire was divided, the Amer- 
ican people adopted and established for this 
country such an informal, unlimited, and extem- 
poraneous government as suited the exigencies • 
of the time,' by a general representation of the 
people, chosen on Revolutionary principles, with- 
out previous law or regard to time, place, or 
circumstance, other than the mere facility of 
congregation, regardless of corporate rights, or 
minor local divisions. I^o delegate of the first 
Congress pretended to an authority to represent 
or bind any organized general convention of the 
body politic of a whole colony, a^o such con- 
vention existed in any colony, or could have been 
formed without the agency of a previous gov- 
ernment. The king's governors called only for 
a partial representation, carefully excluding, when 
they could, those places from which they ex- 
pected representatives they did not want. So 
that, if the legally chosen delegates had revolted 
in a body and united in a convention, the mass 



496 THE STATES. 

of the people would have been incompetently 
represented. 

§ 579. The Contmental Congress, however, 
supplied, as well as it might, the j)lace of the 
royal government in England; but the people 
soon felt the want of those domestic institu- 
tions they had enjoyed by virtue of the king's 
charters, though they granted no power to do 
any thing inconsistent or incompatible with the 
" laws of this our realm of England." To satisfy 
this want, the "United Colonies, in Congress 
assembled," authorized and " recommended to the 
Provincial Convention of 'New Hampshire . . . 
to call a full and free representation of the peo- 
ple; and that the Representatives, if they think 
it necessary, establish such a form of govern- 
ment as in their judgment will best produce 
the happiness of the people, and most effectually 
secure peace a7id good order in the province, 
during the continuance of the present dispute 
between Great Britain and the Colonies."^ Such 
I'esolutions carried with them no other authority 
than the adoption of temporary substitutes for 
the extinct colonial or provincial governments, 
and equally subordinate and subsidiary to the 
general government and laws of the country, 
whatever they might be. Some of them were 
merely a continuation, under the Congress, of the 
former colonial governments, and none of them 

1 Eesolve of Nov. 3, 1775, respecting a government for New Hamp 
shire. 



THE STATES. 497 

contained any more independence or sovereignty 
than the colonial charters. 

§ 580. AYhen peace became more hopeless, 
and some local governments were still not prop- 
erly organized, Congress "recommended to the 
respective assemblies and conventions [not the 
peojile] of the Colonies, . . . when no govern- 
ment sufficient for the exigencies of their ajfairs 
hath been already established, to adopt such 
government as shall, in the opinion of the re^J- 
resentatives of the people, best conduce to the 
happiness and safety of their constituents in i:>ar- 
ticular^ and America in general." That this did 
not confer or recognize any independence, sov- 
ereignty, or supremacy on the respective colo- 
nies, is manifest from several considerations. 
1. Its language does not purport to do any such 
thing. 2. The United Colonies, at that time 
(May, 1776), had nothing of the kind themselves 
to concede to any body. They even nominally, 
for two months longer, admitted their own subor- 
dination, and did not proclaim their final sepa- 
ration and independence of the government of 
Great Britain. 3. It obviously recognizes the 
integrity of the whole, and of course the sec- 
tionality and dependence of the particular parts. 
4. That the individual colonies themselves so 
understood it, is manifest from the fact, that 
every government so formed recognized, in some 
form, this position, as a part only of the country, 
and subordinate to its government. This posi- 

32 



498 THE STATES. 

tion was never changed by the people of the 
United States, and could not be changed bj any 
other power. 

§ 581. In the year 1781, seven years after the 
formation of the Union, and five years after 
the final declaration of the independence and 
sovereignty of the nation, these local govern- 
ments adopted among themselves a treaty or 
league, called a Confederation, — a sort of "Holy 
Alliance," — in which neither the people of the 
United States nor the people of the individual 
States were named as j)arties, or ever became 
such by any formal act. By this alliance they as- 
sumed that each State had, individually, complete 
"sovereignty, freedom, and independence;" and 
that "the United States in Congress assembled," 
under whose government they were constituted, 
organized, and defended, had no " power, juris- 
diction, or right, which is not by this Confed- 
eration expressly delegated" to them, — thus 
making themselves supreme, and the general 
government subordinate, and dependent in all 
things upon the local legislatures. " The thing 
framed said to him that framed it, he had no 
understanding." It is manifest that no such 
procedure as this could have any tendency to 
change the legal relation between the people of 
the United States or their government, and the 
local governments they had invited and allowed 
to be organized within and under their jurisdic- 
tion. Their rights and duties, as the legitimate 



THE STATES. 499 

successors and inheritors of the national sove- 
reignty, with those of the government they then 
had or any other they might afterwards form, 
remained precisely the same as though the vState 
legislatures had not confederated. Such a com- 
bination could neither increase their own powers, 
nor diminish those of the United States. 

§ 582. Though the league was of no validity, 
as against the ^^^ople of the United States or 
their government, yet, as the delegates in Con- 
gress had usually been members of the State 
governments, were elected and paid by them, 
and not unfrequently in sympathy with them, 
they conformed to it, as far as possible, till its 
unfitness for their use was fully demonstrated. 
So far as it respected the only parties to it, — 
the State legislatures, — there is no doubt the 
treaty was a valid contract, there being then no 
law against it. What each one bound itself to, 
with respect to the others, it could not rightfully 
depart from. This league undertook to make a 
distribution of all governmental powers. What 
the parties assigned to themselves or each other 
is of no consequence, because of no authority. 
But what they agreed among themselves did not 
belong to them, or any of them, but did belong 
to the United States, and bound themselves to 
each other that none of them should claim or 
exercise, they could not afterwards assume, ii^sis 
judicihus, as rightfully belonging to them, and 
so " reserved " to them by the Constitution, even 



500 THE STATES. 

if any of such powers had been vested in them 
prior to that contract. This excludes from any 
pretence of reservation to the State governments, 
all the powers abjured by them, or assigned to 
the United States by the Confederation. !N^one 
of them had, in fact, ever belonged exclusively 
to the State governments; but, if they had, they 
could not any longer, without a violation of that 
solemn compact. 

§ 583. Among the rights accorded to the 
United States by this league, were the follow- 
ing: 1. To have a Congress for the "manage- 
ment of the general interests of the United 
States." 2. Freedom of debate for the members 
of Congress, and exemption from arrests and im- 
prisonments during its session. 3. All expenses 
for the "common defence or general welfare," 
shall be defrayed out of a common treasury, 
supplied by the States as apportioned to them. 
4. Determining on peace or war. 5. Sending and 
receiving ambassadors. 6. Treaties and alliances. 
7. Rules for captures on land or water. 8. Dis- 
tribution of prizes. 9. Granting letters of 
marque and reprisal in times of peace. 10. Trial 
of piracies and felonies on the high seas. 11, 
Courts for appeals in all cases of captures. 
12. Determining all disputes between two or 
more States. 13. All controversies concerning 
right of soil claimed under grants from two or 
more States. 14. To regulate the alloy and 
value of coin. 15. Fixing the standard of 



THE STATES. 501 

weights and measures. 16. Regulating trade 
with the Indians. 17. Estabhshing post-offices. 
18. Appointing officers for and regulating the 
land and naval forces. 19. " To ascertain the 
necessary sums of money to be raised for the ser- 
vice of the United States, and to appropriate and 
apply the same; to borrow moliey or emit bills 
on the credit of the United States; to build and 
equip a navy; to agree upon the number of land 
forces, and to make requisitions from each State 
for its quota." 20. Every State shall abide by 
the determination of the United States in Con- 
gress assembled, on all questions hereby sub- 
mitted to them. 

§ 584. By the same treaty of Confederation, 
the State legislatures laid themselves under sun- 
dry restrictions and disabilities, from which they 
could not be absolved without the consent of 
the other parties : — 

1. 'No State shall send any embassy to, or re- 
ceive any embassy from, or enter into any con- 
ference, agreement, alliance, or treaty with, any 
king, prince, or state. 

2. No two or more States shall enter into any 
treaty, confederation, or alliance whatever be- 
tween them. 

3. No State shall lay any imposts or duties 
which may interfere with any stipulations in 
treaties. 

4. No vessels of war shall be kept up in time 
of peace by any State. 



502 . THE STATES. 

5. ]N"or shall any body of forces be kept np in 
any State in time of peace. 

6. 'No State shall grant commissions to any 
ships or vessels of wai*, or letters of marque and 
reprisal. 

§ 585. These, and many other powers of the 
general government and disabilities of the local 
legislatures, were not new, but had been prac- 
tised, or well understood, from the foundation 
of the Amei'ican Union. But they were intro- 
duced into this league of confederation for the 
double purpose of being claimed as grants or 
concessions of the State governments, and of 
being rendered, in a great measure, nugatory, 
as they were, by exceptions, qualifications, and 
limitations, that destroyed all efficiency in the 
government, and brought it to a speedy stand. 
Though by these operations the legal status of 
the people of the United States or their govern- 
ment had not, in respect to the local jurisdic- 
tions, been actually changed; yet it was found 
necessary, in order to preserve the Union and 
prevent a total abolition of the government, to 
resort to an entirely new organization. This 
was most providentially effected by the people, 
in peace, with the active co-operation and assist- 
ance of all the State legislatures, and the organs 
of their alliance. 

§ 586. Up to this time, though the legal rela- 
tions of the American Union, both internal and 
external, remained unchanged, they were actually 



THE STATES. 503 

unwritten, practically iindefined, and essentially 
unlimited, except by the principles of interna- 
tional and natural law. They made little pro- 
gress in defining or systematizing them during 
the War of Independence ; and the abortive 
league of confederation among the subordinate 
governments made none afterwards. So the 
Constitution itself was the result of the first and 
only attempt of the American people to define 
and limit, by a wi'itten fundamental law, the 
rights and duties of their own government, in 
relation to every thing within and every thing 
without its jurisdiction. 

§ 587. In respect to all within the United 
States or any part thereof, whether individuals, 
communities, corporations, or governments, they 
have spread over them the broad mantle of 
the Constitution, subjecting the wdiole, equally 
and universally, to the supreme law of the land. 
All that it says particularly the States shall not 
do, and all it says more generally shall not be 
done, it is the business of the government to 
take care that they are not done. Any one of 
the least of these disabilities is a perfect negation 
of all claims to independence, nationality, or sov- 
ereignty. Several of them are aimed directly at 
those attributes. 

§ 588. "]N"o State shall enter into any treaty, 
alliance, or confederation; . . . enter into any 
agreement or compact with another State or 
with a foreign power, or engage in a wai'," &c. 



504 THE STATES. 

A sovereign and independent State prohibited 
from quarrelling with its neighbours, or even 
making peace ! ! They might as well be required 
to practise "justice and domestic tranquillity," — 
to stay at home and mind their own business. 
Yet this class of prohibitions deprives the States 
of no power they ever possessed. We have seen 
that the State governments themselves, in their 
confederation league, most elaborately disclaimed 
the whole of them. Besides these disabilities 
going precisely to the annihilation of any claim 
to a status among nations, as independent sover- 
eignties by international law, the Constitution 
imposes many others interfering more directly 
with the internal administration of interests 
purely local. Some of these are particular, and 
apply directly and exclusively to the States; 
while others are general, in the nature of a, dec- 
laration of rights, and operate not only as a 
restraint on the people of the States and their 
own local governments, but also on the govern- 
ment and people of the whole nation. 



CHAPTEK XXX. 



STATE DISABILITIES. 



§ 589. The disabilities of States, in respect to 
the domestic affairs of their own locahties, spe- 
cially imposed by the Constitution, are mostly 
found in the 10th section of Article I. "No 
State shall . . . grant letters of marque and re- 
prisal." This prohibition is made on account of 
the danger to which the exercise of such a power 
would expose the peace of the country, and the 
international relations of their government. "JN^o 
State shall . . . coin money." As this power 
was expressly given to Congress, the restriction 
prevents any interference by States. " Xo State 
shall . . . emit bills of credit." As a State can- 
not make money, or say what shall be money, so 
neither can they make or authorize any substitute 
for money. A bill of credit is a promise to pay 
money. "In its enlarged, and perhaps literal, 
sense, the term ^ bill of credit,' in the Constitu- 
tion, may comprehend any instrument by which a 
State engages to pay money at a future day; 
thus including a certificate given for borrowed 

[505] 



503 STATE DISABILITIES. 

money." ^ The whole duty of regulating the 
currency, as an instrument of commerce and a 
part of the commercial power, is imposed upon 
Congress; and the States are expressly, as well 
as impliedly, excluded from it. What they can- 
not do themselves, of course they cannot author- 
ize others to do for them. Thus far is clear. 

§ 590. But what is its bearing upon other 
assumed powers of the State governments? If 
the States may contract debt, receive credit, and 
especially if they may borrow money, they must 
promise to pay; that is, in some some form or 
by some token, issue or " emit a bill of credit." 
This the owner may sell or transfer to his neigh- 
bor, and thus it may go into circulation, as a 
substitute for the money it promises. If it is 
valid evidence of a legal claim against the State 
in the hands of the owner, such evidence can be 
multiplied to any extent, and the prohibition be 
rendered thereby utterly void. If such evidence, 
as being issued in direct violation of the Consti- 
tution, is inadmissible, and can prove nothing, 
then the States can have no credit for borrowed 
money or any thing that requires that kind of 
pi'oof. This condition of the law would afford 
the best security for the United States against 
a liability for the debts of repudiating States. 
State debts, lawfully contracted and proved, must 
be paid, because the States are able to pay them. 
If they may lawfully contract debts, by borrow- 

1 4 Peters' Rep., 431, Craig v. Missouri. 



STATE DISABILITIES. 507 

ing money or otherwise, ad Uhitmn^ the gov- 
eriimeiit of the United States is bound by the 
Constitution to see them paid, because it was 
ordained on purpose to " estabUsh justice." 

§ 591. It is true that individual citizens of 
domestic or foreign States cannot sue a State 
of wiiich they are not citizens. But citizens of 
the United States, who are not at the same time 
citizens of a State other than the one prosecuted, 
may do so; or at least they are not within the 
terms of the prohibition in the eleventh Amend- 
ment. This includes citizens of the same State, 
and citizens of the Tenitories, of the District of 
Columbia, and all other places not belonging to 
any particular State. More than this, domestic 
or foreign States may become the owners of such 
debts, or assume the enforcement of them on be- 
half of their own injured citizens, and would have 
a right to demand the assistance of the Supreme 
Court for the purpose. Foreign states, indeed, 
might decline to ask or rely on any such assist- 
ance, but undertake the direct enforcement them- 
selves, in the manner lately resorted to by France 
against Mexico.^ In such a case, as the United 
States would be bound to protect the defaulting 
State " against invasion," they would have only 
the alternative of paying the just debt, or assum- 

1 "Laws in violation of private contracts, as tliey amount to ag- 
gressions on the riglits of those States whose citizens are injured by 
them, may be considered as a probable source of hostility." — " The denial 
or perversion of justice by sentences of courts, is Avith reason classed 
among the just causes of war." — Federalist, Nos. 7 and 80, by Hamilton. 



508 STATE DISABILITIES. 

ing an unjust war in favor of the wrongdoer; 
which would be much worse in principle, and 
more injurious in interest. 

§ 592. " JSTo State shall . . . make any thing 
but gold and silver coin a tender in payment of 
debts." To make any thing a legal tender, is to 
require it to be received as money, where money 
is due ; and this is only in another form to say 
what shall be money, — that is, to coin it. As 
the States cannot do this, so neither can they 
disj^ense with it, nor make any substitute for it. 
Congress are not restricted, in making, adopting, 
and fixing the value of money, to the use of any 
particular description of materials ; but the States, 
in making tender laws, are restricted to the coin 
or authorized money of the United States, and to 
that portion of it manufactured from gold and 
silver. 

§ 593. "ISTo State shall . . . pass any . . . 
law impairing the obligation of contracts." Mr. 
Madison says of such laws, with others in the 
same connection, they " are contrary to the first 
principles of the social compact, and to every 
principle of sound legislation."^ The prohibition 
is taken substantially from the Ordinance of 
1787, as drawn by Mr. Dane, where the words 
are " interfere with or affect private contracts." 
The change is significant. "Interfere with or 
affect" might extend to any act that should 
touch or relate to this contract. But to "im- 

i Eederalist, No. 44. 



STATE DISABILITIES. 509 

pair the obligation," means only to weaken the 
force or efficacy of the contract. Leaving out 
the qualifying word "private," makes the pro- 
hibition apply to all contracts. Thus the Su- 
preme Court say,^ " The words are general, and 
are applicable to contracts of eveiy description." 
They have been judicially applied to contracts 
between individuals, between States^ and between 
States and individuals* to State grants of every 
kind, — of land, easements, privileges, and fran- 
chises ; and for all sorts of purposes and uses, 
whether mercantile, agricidtural, manufacturing, 
educational, or eleemosynary. In fict, to almost 
every conceivable contract in the power of the 
State or people to make, except their own Con- 
stitutions. 

§ 594. To prevent the violation of these, to 
the detriment of individual rights, by the State 
itself, or by any department of its government, 
the courts of the United States have never been 
called upon to interfere, under the authority of 
this restriction. Civil rights of great importance 
and value are acquired, vested, and held under 
these constitutions, and are afterwards taken 
away, lost, or impaired by adverse unconstitu- 
tional State action, under the forms of law, 
without restraint or redress. "Why an a^^peal 
should not be made to the supreme judicial 
power of the nation for redress under this pro- 
vision, is not readily perceived. That State 

1 6 Cranch's Kep., 137. 



510 STATE DISABILITIES. 

constitutions are contracts in their nature, will 
hardly be denied. They are usually so called 
on their face. Chief Justice Jay said/ "Every 
State constitution is a compact, made by and 
between the citizens to govern themselves in a 
certain manner." The constitution of Massa- 
chusetts asserts that "the body politic ... is 
a social compact, by which the whole people cov- 
enants with each citizen, and each citizen with 
the whole people, that all shall be governed by 
certain laws." They therefore " ordain and es- 
tablish "... the constitution, which they call 
" an original, explicit, and solemn compact with 
each other." All the State constitutions pur- 
port expressly to be founded on the consent, 
agreement, or compact of the people, and are 
thus made contracts in form as well as in sub- 
stance. If they are contracts at all, they must 
be contracts of some description ^ and if the 
prohibition of our Constitution is " applicable to 
contracts of every description^'' of what descrip- 
tion must those contracts be, to which it does not 
apply? 

§ 595. " "Whenever a law is in its own nature 
a contract, and absolute rights have vested un- 
der it, a repeal of that law cannot divest those 
rights, or annihilate or impair the title so ac- 
quired." A constitution is a law, and if an 
authorized repeal of it by the whole people can- 
not impair rights held under it, much less can 

1 2 Dallas's Eep., 419. 



• STATE DISABILITIES. 511 

an unauthorized violation of it by any depart- 
ment of its government. It is difficult to see 
"vvhy a private vested right, when attempted to 
be imj^aired in this manner, should not be pro- 
tected under the authority of this prohibition by 
the general government, whose duty it is to exe- 
cute the Constitution. It is no answer to say, 
even if it could be proved, that such a result 
was not in contemplation Avhen the Constitution 
■was formed. " Although a rare or particular 
case may not of itself be of sufficient magnitude 
to induce the establishment of a constitutional 
rule, yet it must be governed by that rule when 
established, unless some plain and strong reason 
for excluding it can be given." A constitutional 
bill of rights is a grant, recognition, or assurance 
to mdividuals, of the rights therein contained; 
and, like any other grant, is a contract executed, 
and an extinguishment of the right of the 
grantor, and implies a contract not to re-assert 
that right.^ The Constitution says that a State 
shall not impair the obligation of contracts, and 
the Supreme Court have authority to enforce the 
prohibition. 

§ 596. " ^o State shall . . . pass any bill of 
attainder, ex j^ost facto law, . .* . or grant any 
title of nobility." These are repetitions of what 
had been moi-e generally prohibited before, and 
have already been sufficiently remarked upon. 
" No State shall . . . lay any imposts or duties 

' 1 See 3 Story's Com., 258; 6 Cranch's Eep., 135; ,1 Kent's Com., 392. 



512 STATE DISABILITIES. 

on imports or exports • " or " lay any duty of 
tonnage ; " or " keep troops or ships of war in 
time of peace." It is added in regard to these, 
and some others, "without the consent of Con- 
gress ', " but this neither increases nor diminishes 
the force of the restriction; for whatever Con- 
gress may lawfully do directly, on any of these 
subjects, they may doubtless do indirectly, that is, 
consent to their being done by the State legisla- 
tures, if they so choose. 

§ 597. Besides the foregoing particular and 
express restrictions on the States or their gov- 
ernments, the Constitution contains many others, 
relating to matters purely internal, ajDjDlying more 
indirectly, j)erhaps, and not exclusively, to the 
States, but still equally including them and all 
others subject to the Constitution. Whatever 
the Constitution contains is the supreme law of 
the land, and binds everybody that is under the 
law. This class of disabilities extends to all 
general inhibitions of acts in derogation of rec- 
ognized rights, and all negations or affirmations 
in the nature of a declaration of rights. Saying 
that a thing shall not be done, that is otherwise 
within the scope of legislative power. State or 
national, operates essentially a constitutional dis- 
ability on all governments and people within its 
jurisdiction. 

§ 598. Instances under this head include such 
subjects as the following: The privilege of mem- 
bers of Congress from arrest; the suspension' 



STATE DISABILITIES. 513 

of the writ of licibeas coijnis; the compensation 
of the President; the trial of all crimes by jury; 
the requirement of two witnesses for conviction 
of treason; attainder of treason not to work cor- 
ru2)tion of blood or forfeiture after the death of 
the traitor; the faith and credit to be given to 
public acts and records of other States; the 
privileges and immunities of citizenship ; the 
extradition of fugitives from justice; the dis- 
charge of fugitives from labor ; the support of 
republican government ; the invalidity of any 
State law contrary to " the law of the land." 

§ 599. Many subjects are similarly restricted 
in the constitutional amendments of which the 
following are examples: The free exercise of 
religion ; freedom of speech ; freedom of the 
press; the right of the people to assemble and 
petition the government; the right of the people 
to keep and bear arms; the right of the peo- 
jdIc to be secure in their persons, houses, papers, 
and effects; the legality of warrants upon prob- 
able cause, supported by oath, &c. ; indictments 
only by a grand jury; only once in jeopardy of 
life or limb, for the same offence; no one com- 
j)elled to be a witness, in a criminal case, against 
himself, nor deprived of life, liberty, or j^roperty, 
without due process of law; nor shall private 
property be taken for public use without just 
compensation; the right of trial by juiy in suits 
at common law involving over twenty dollars. 
All these and some other provisions are in the 

33 



514 STATE DISABILITIES. 

nature of a bill of rights, sanctioned by the Con- 
stitution, and are, by necessary implication, so 
many restrictions on all power, wherever lodged. 
A few only are particularly applied to Congress; 
but it is not to be supposed that this was intended 
to be exclusive, or that the people of the United 
States meant to have their rights exposed to 
depredations from others, after protecting them 
against their own government. The acknowl- 
edged constitutional rights of the people must 
be protected by the government, not only against 
their own wrongdoing, but against any other 
agency in the land. The government has as 
much right to put a citizen to the rack in order 
to compel him " to be a witness against himself," 
as it has to permit a village magistrate to do the 
same thing, under the pretended authority of a 
State law. And so of every other prohibition in 
the catalogue. 

§ 600. These are the disabilities and restric- 
tions imposed on the States, by the terms of the 
Constitution. They were always in view during 
the early discussions of the relative rights of 
State and nation, when it was well understood 
and recognized, that the Constitution left the 
States with all the legal rights they then had, 
except those that were altered by that instru- 
ment. It was known that no new powers of 
government were conferred on the States, and 
that all its legislative powers were vested in 
Congress. It was also perfectly and equally 



STATE DISABILITIES. 515 

well known to all concerned, that the whole ob- 
ject of the American people, in ordaining and 
establishing the Constitution, was to constitute a 
firm national government, adequate to all the ex- 
igencies of a government for the United States, 
" in order to form a more perfect Union, estab- 
lish justice, insure domestic tranquillity, provide 
for the common defence, promote the general 
welfare, and secure the blessings of liberty " to 
all the people of the United States and their pos- 
terity. All this was true, well understood, and 
plainly and permanently written on parchment. 
But the future was unseen, and necessarily left 
out of the account. It could not have been fore- 
seen, that a system of false doctrine and antag- 
onistic 25i'actice, leading to, and terminating in, 
treason, rebellion, and war, would be adopted by 
a portion of the subordinate States, the result of 
which might be the total annihilation, or any 
thing short of it, of all those States. 

§ 601. The avowed purposes of the people of 
the United States, for which the Constitution 
was established, they had made it the duty of 
their government to accomplish, by all the means 
placed at their disposal. These means were, the 
making and executing of " all laws necessary 
and proper " for that end. "Whatever laws may 
be properly made by one department, must be 
lawfully executed by the other departments ; 
and whatsoever the government, or any depart- 
ment or officer thereof, may lawfully do or com- 



516 



STATE DISABILITIES. 



mand for any of those purposes, no man may 
lawfully undo or counteract. This constitutes 
the sweeping and all-pervading restriction and 
disability of every citizen and subject within the 
Union, the States inclusive. This is the su- 
premacy of the Constitution, and, with the laws 
and treaties of the United States, forms the para- 
mount " laAV of the land," binding all officers and 
judges, States, corporations, and |)eople, " any 
thing in the constitution or laws of any State 
to the contrary notwithstanding." 



VI VAT EE8PUBLICA. 



INDEX. 



[Art., §, cl., refer to the Article, Section, and Clause of the Constitution. Am. refers 
to the Anieudmeuts of the Constitution. Figures alone, without prefix, indicate the 
page of the work.] 



Acts, records, and judicial proceed- 
ings, faith and credit of. Art. 4, 
§1; 371. 
proof and effect of, ib. ; 371. 

Adjournment of the two Houses, Art. 
1, §5, cl. 4; 170. 
of Congress by the President in 
case. Art. 2, § 3; 451. 

Admiralty and maritime jurisdiction. 
Art. 3, § 2, cl. 1 ; 457, 463. 

Aliens and slaves, not citizens, 55, 60, 
150, 158, 160, 162. 

Ambassadors, ministers, and consuls 
appointed. Art. 2, §2, cl. 2; 451. 
received, Art. 2, § 3; 451. 
within the judicial power, Art. 3, 
§2, cl. 2, 3; 462. 

Ambiguit}- of the word " free," Art. 1, 
§ 2, cl. 3 ; 156. 

Amendments of the Constitution, how 
made. Art. 5 ; 390. 
restricted, 428. 
in nature of bill of rights, 392, 415, 

513. 
First Amendment, 285, 396. Sec- 
ond, 145, 286, 396. Third, 397. 
Fourth, 397. Fifth, 133, 145, 395. 
Sixth, 145, 397. Seventh, 145, 
397. Eighth, 397. Ninth, 397. 
Tenth, 68, 146, 397, 499. Elev- 
enth, 398. Twelfth, 171, 398. 
Thirteenth, 164, 399. Fourteenth, 
401. 

Ames, Fisher, 139. 

Anderson v. Dunn, 277, 447. 

Anti-slavery petitions, 134. 
end of, 139. 

Appointment, 452. 

Apportionment of representatives and 
direct taxes, Art. 1, § 2, cl. 3; 156, 
182, 208, 411. 



Apportionment of representatives and 
direct taxes, rule of. Art. 1, § 9 ; 
208, 411; Am. 14th; 405. 
predicated on the census, 236. 
Appropriations made by law. Art. 1, 
§9; 182, 214, 285, 291, 426. 
for armies, not longer than two 
j'ears, Art. 1, § 8, cl. 12; 414. 
Armies, raise nnd support, Art. 1, § 8, 
cl. 12; 350. 
British, not to be supplied, 97. 
Arms, right to keep and bear, Am. 2d; 

59, 145, 286. 
Articles of Confederation, 32. 54, 103, 
Art. 6, § 1; 101, 103, ilO, 500. 
— See " League," " Confedera- 
tion." 
Arts and science, to promote. Art. 1, 

§ 8, cl. 8 ; 82, 356. 
Assemble and petition, right to. Am. 

1st; 286. 
Attainder, bill of, prohibited, Art. 1, 
§9, cl. 3; §10, cl. 1; 284, 419. 
of treason not to work after the 
death of the traitor, Art. 3, § 3, 
cl. 2; 423. 
Attributes of nationality, assumed be- 
fore the Declaration, 93, 98. 
asserted by the Declaration, 48. 
re-affirmed by the Constitution, 49. 
Authors and inventors, their rights 
recognized, Art. 1, § 8, cl. 8; 82. 



Bail and fines, not excessive. Am. 

8th; 397. 
Bank, national, 294. 
Bankruptcy, laws of. Art. 1, §8, cl. 4; 
336. 
State laws of, 70. 
Basis of representation. Art. 1, § 2, 

[517] 



518 



INDEX. 



cl. 3; Am. 14th, §2; 150, 156, 
182, 236, 240, 406. 
Basis of representation, proceedings in 

the Convention, 208. 
Bates, Edward, Attorney-General, 55, 

57. 
Bayard, James A., on impeachment, 

169. 
Bible commends slaverj', 135. 
Bills of attainder prohibited. Art. 1, 
§9, cl. 3; §10, cl. 1; 284,419. 
of rights, 393, 504, 511, 514. 
amendments in the nature of, 392, 

415. 
of credit by States pi-ohibited. Art. 

1, § 10, cl. 1; 97, 1S9, 505. 
passed both Houses, presented to 
the President, Art. 1, § 7, cl. 2 ; 
172. 
for raising revenue, originate in the 
House of Representatives, Art. 1, 
§7,cl. 1; 167. 
Blackstone, on sovereignty, 47. 

bankruptcy, 336. 
Blount, William, impeachment of, 168, 

437. 
Borrow monej'-, Art. 1, § 8, cl. 2; 189. 

power imlimited, 290, 324. . 
Boston, British troops in, to be at- 
tacked, 98. 
may be destroyed, 98. 
Bound to service. Art. 4, § 2; 159, 163, 
213. 
for term of years, Art. 1, §2; 159, 

162, 213. 
legally, 163. 
free, 156, 159, 162. 
not slave, 160. 
Brearley, of New Jersey, chairman of 
the Omnibus Committee, 118, 
314. 
Brilliant et al. v. United States, 351. 
British empire divided by our Revolu- 
tion, 48, 50, 91, 98, 495. 
troops not supplied, 97. 
Brown v. the United States, 439. 
Buller, Mr. Justice, on preamble, 86. 
Burlamaqui, on sovereignty, 47. 
Bynkershoelc, on war, 440. 



Cabot, George, 262. 

Calder v. Bull, 180, 284. 

Calhoun, John C, 141. 

Capitation and other direct taxes, how 

laid. Art. 1, §9, cl. 4; 208. 
Captures on land or water, rules 

concerning, Art. 1, § 8, cl. 11; 

350. 
Case of Dartmouth College, 396. 
Census to be taken every ten years, 

Art. 1, §2, cl. 3; 53, 158,235. 
Indians not taxed, 236. 
who besides excluded, 237. 
Chase, Samuel, Mr. Justice, 284, 437. 



Chief Justice to preside in trial of the 
President on impeachment. Art. 1, 
§3, cl. 6; 167. 
Chisholm v. Georgia, 115. 
Citizens, members of the nation, who 
are, 47, 49, 53, 55, 150, 157, 199; 
Am. 14th, § ] ; 201, 401. 
who are not, aliens, slaves, and In- 
dians not taxed, 57, 60, 61, 160. 
rights of, 57 ; Art. 4, § 2, cl. 1 ; 114, 

155, 185, 198, 201. 
in every State, 184, 202, 401. 
Citizenship by birth. Art. 2, § 1 ; 201. 
by naturalization, Art. 1, § 8, cl. 4; 

159. 
in 1776; 53, 54,96, 159. 
includes the right of suffrage. Am. 
14th; Art. 1, §2, cl. 1; 69, 185, 
403. 
Civil government petitioned for by 
Colonies, 94. 
officers liable to impeachment, Art. 

2, §4; 168. 
officers. State and national, sworn 
to the Constitution, Art. 6, § 3 ; 
191.' 
Claims of States or nation not preju- 
diced, Art. 4, § 3, cl. 2 ; 230 
Cohens v. Virginia, 78, 248, 321, 360. 
Coin and vakie monev, Art. 1, § 8, 
cl. 5; 337. 
no State shall, Art. 1, § 10, cl. 1 ; 

189, 505. 
foreign, ib ; 337. 
current, 338. 

gold and silver coin. Art. 1, § 10, 
cl. 1 ; 338. 
Coke, Lord Chief Justice, on pream- 
ble, 86. 
on bankruptcy, 336. 
Commander-in-chief and other officers 

appointed in 1775 ; 97. 
Commerce regulated before the Decla- 
ration, 91, 93, 98. 
regulation of. Art. 1, § 8, cl. 3; 207, 

326. 
regulation of, not to favor one State 
over another. Art. 1, § 9. cl. 5 ; 
413. 
Commercial powers, 326. 
exclusive, 330, 342. 
extent of, 327. 

include traffic and intercourse, 326. 

Committee of Detail, 83, 208, 314, 364. 

of Revision, 33, 86, 118, 212, 364. 

Omnibus, Mr. Sherman's, 313, 118. 

Common defence, a purpose of the 

government, first or enacting 

clause, 31, 40, 118, 121, 286, 426. 

a power of Congi-ess, Art. 1, § 8, 

cl. 1; 118, 124, 295, 810. 
unlimited, 120. 
provide for, 120, 124, 312. 
and general welfare came into the 
Constitution, 40, 118. 



INDEX. 



519 



Common law and equity, cases in, 
Art. 3, § 2, el. 1 ; 284J 346, 458.— 
See ".Judicial Power." 

suits tried by jury, Am. 7th; 397. 

facts re-examined according to. 
Am. 7th ; 388, 397. 
Confederation of 1781, Art. 6, § 1 ; 32, 
101, 103. 

a treaty or league of States, 37, 54, 
103, 'no, 498. 

United States not a party, 104. 

could not increase their own power, 
104. 

or diminish that of the Union, 104, 
498. 

defects of, 90, 106. 
Congress, how organized. Art. 1, §§ 1, 
2, and 3; 150, 104, 172. 

vested with all legislative powers 
of the Constitution, Art. 1, § 1 ; 
172, 175. 

to make all laws necessary for exe- 
cuting it. Art. 1, § 8, cl. 18; 179, 
180, 195. 

powers general or special, 179, 180, 
301. 

powers general, when merely re- 
sulting from legislative duty, 177, 
179, ISO, 181. 

powers special, when expressly as- 
signed to them, 179, 235. 

General powers of, to secure a rep- 
resentation of the people accord- 
ing to Art. 1, §2, cl. 1, 4; 182. 

apportion representatives among 
the States, Art. 1, §2, cl. 3; 182, 
190. 

authorize each House to compel 
the attendance of its members. 
Art. 1, §5, cl. 1; 166. 

provide for publishing the Journals 
of the two Houses, Art. 1, § 5, cl. 
3; 183. 

fix the compensation for their 
own services, Art. 1, § 6, cl 1; 
271. 

make appropriations of public mo- 
ney, Art. 1, § 9, cl. 6; 285, 291. 

provide for publishing the receipts 
and expenditures. Art 1, § 9, cl. 
6; 183. 

suspend the habeas corpus, when, 
in rebellion or invasion, the public 
safety requires. Art. 1, § 9, f 1. 2; 
284. 

fix the compensation of the Presi- 
dent, Art. 2, §1, cl. 7; 184. 

fix the compensations ol the Judges, 
Art. 3, §1; 184. 

secure to citizens their privileges in 
every State, Art. 4, §2, cl. 1, 
Am. 14th, §1: 184, 198. 

secure the election of President and 
Vice-President according to Art. 
2 and Am. 12th ; 185. 



Congress, provide for the extradition 
of fugitives from justice or labor, 
Art. 4, § 2, cl. 2, 3; 184, 187, 206. 

guarantee a republican government 
to the States, Art. 4, §4; 184, 
220, 229, 255. 

protect the States against invasion 
and violence. Art. 4, § 4 ; 190, 229. 

cause State Judges to be bound by 
• the supreme law. Art. 6, § 2; 185, 
190, 232, 395. 

bind hy oath all officers. State or 
national, to support the Constitu- 

' tion, Art. 6, § 3; 233. 

discharge the debts and engage- 
ments of their predecessors. Art. 
6, § 1 ; 230. 

cause all civil officers. State or na- 
tional, to support the Constitu- 
tion, Art. 6, §3; 184, 187, 191, 
232, 294. 

execute the Constitution when rati- 
fied by nine States, Art. 7 ; 234. 

quarter soldiers in private houses 
in war. Am. 3d; 397. 

secure the people against illegal 
searches and warrants, Art. 4; 
397. 

prevent criminal trials without ac- 
tion of a grand jury, Am. 5th; 
395. 

prevent two trials endangering life 
or limb, Am. 5th ; 395. 

prevent compulsory evidence by 
criminal against himself. Am. 
5th; 395. 

prevent deprivation of life, liberty, 
or property without process of 
law, Am. 5th ; 395. 

prevent property being taken for 
public use without compensation, 
Am. 5th; 395. 

secure the rights of criminals on 
trial by jury. Am. 6th; 397. 

preserve trial by jury in suits at 
common law, for over twenty dol- 
lars, Am. 7th ; 388, 397. 

pre\'ent re-examination of facts oth- 
erwise than by common law. Am. 
7th; 388, 397. 

prevent the requirement of exces- 
sive bail or fines, and cruel pun- 
ishments. Am. 8th; 397. 

disparage no rights, because not 
enumerated, Am. 9th; 397. 

secure the reserved rights of the 
States and people, Am. 10th; 397. 

seciu^e States against suits by citi- 
zens of other States, domestic or 
foreign. Am. 11th; 398. 

Special powers of, assigned by ex- 
press provisions of the Constitu- 
tion, 235. 

to direct the taking of the census, 
Art. 1, §2, cl. 3; 235. 



520 



INDEX. 



Congress to regulate the election of 
Senators and Representatives, 
Art. 1, § 4, cl. 1 ; 238, 244, 250, 
268. 

to appoint the day of their annual 
session. Art. 1, § 4, cl. 2; 172, 
270. 

to pass laws over the President's 
veto, Art. 1, § 7, cl. 2; 172, 271. 

to lay and collect taxes, duties, im- 
posts, and excises, Art. 1, § 8, cl. 
1; 81, 290. 

to pay the dehts, and provide for 
the defence and welfare of the 
United States, ib., 81, 292, 295, 
312; 

to borrow money on the credit of the 
United States, Art. 1, § 8, cl. 2; 
290, 324. 

to regulate commerce, foreign, do- 
mestic, and with Indians, Art. 1, 
§ 8, cl. 3; 207, 326, 342. 

to establish laws of naturalization 
and bankruptcy. Art. 1, § 8, cl. 4; 
333, 335. 

to coin money and regulate its 
value and that of foreign coin. 
Art. 1, § 8, cl. 5; 337. 

to fix the standard of weights and 
measures, ib., 340, 342. 

to punish counterfeiting the securi- 
ties and current coin of the United 
States, Art. 1, § 8, cl. 6; 344. 

to establish post-offices and post- 
roads. Art. 1, § 8, cl. 7 ; 342, 346. 

to promote science and arts by se- 
curing the rights of authors and 
inventors, ib., cl. 8; 82. 

to coMtitute tribunals inferior to 
'the Supreme Court, Art. 1, § 8, cl. 
9 ; and Art. 3, § 1 ; 369. 

to define and punish offences on 
the high seas and against the 
law of nations. Art. 1, § 8, cl. 10 ; 
344. 

to declare war, grant letters of 
marque, and regulate captures. 
Art. 1. § 8, cl. 11; 349,852. 

to raise and support armies and 
navies. Art. 1, \ 8, cl. 12, 13 ; 350. 

to regulate and govern the land and 
naval forces, Art. 1, § 8, cl. 14; 
350. 

to call forth the militia to execute 
the laws, and suppress insurrec- 
tion and invasion, ib., cl. 15 ; 80, 
350. 

to organize, arm, and discipline the 
militia, and govern them when 
in service. Art. 1, § 8,cl. 16; 350. 

to legislate exclusively over places 
ceded or purchased, by consent 
of State legislatures for govern- 
ment purposes. Art. 1, § 8, cl. 17; 
857. 



Congress to make all laws necessary 
for executing the powers of the 
government, Art. 1, § 8, cl. 18 ; 
190, 364, 410. 

to prohibit or tax the migration or 
importation of persons. Art. 1, 
§ 9, cl. 1; 209, 283. 

to apportion capitation and other 
direct taxes on the census, Art. 1, 
§ 9, cl. 4; 209. 

to authorize an officer to accept any 
present, emolument, office, or title 
from a foreign State, Art. 1, § 9, 
cl. 7_; 427. 

to revise and control State laws 
laying duties on imports or ex- 
ports. Art. 1, § 10, cl. 2; 208. 

to authorize a State duty of tonnage 
and other acts, which would be 
otherwise void. Art. 1, § 10, cl. 
2; 427. 

to determine the time of choosing 
electors, and when they shall vote, 
Art. 2, § 1, cl. 4; 368. 

to declare what officer shall act as 
President, in case of the removal, 
death, resignation, or inability of 
the President and Vice-President, 
Art. 2, § 1, cl. 6; 368. 

to establish the officers, and vest the 
power of appointment, in case, 
&c., Art. 2, § 2, cl. 2; 369. 

to make exceptions fi-om, and regu- 
lations of the appellate jurisdic- 
tion of the Supreme Court, Art. 3, 
§ 2, cl. 2; 370,469. 

to direct the place of trial of crimes 
not committed within a State, 
Art. 3, § 2, cl. 3 ; 397. 

to declare the punishment of treason, 
Art. 3, § 3, cl. 2 ; 370. 

to prescribe the proof and the effect 
of acts, records, and judicial pro- 
ceedings of States, Art. 4, ^ 1; 
371. 

to admit new States into the Union, 
Art. 4, § 3, cl. 1; 373. 

to dispose of and regulate the terri- 
tory and property of the United 
States, Art. 4, § 3, cl. 2; 230,878, 
382. 

to propose amendments to the con- 
stitution. Art. 5 ; 390. 

to call a convention on application 
of legislatures of two-thirds of the 
States, Art. 5 ; 390. 

to enforce the prohibftion of slaverj'-, 
Am. 13th; 401. 

to secure and enforce the rights of 
citizens of the United States, Am. 
14th, § 1 ; 402. 

to protect the rights of voters, Am. 
14th, § 2; 403. 

to enforce the disabilities of rebels, 
Am. 14th, § 3; 402. 



INDEX. 



521 



Congress to enforce the validity of the 
public debt, Am. 14th, § 4; 402. 
to enforce the nou-payment of ille- 
gal claims, Am. 14th, § 4; 402. 
Constitution, ordained and established. 
Enacting Clause, 1, 75. 
adequate to all its purposes, 72, 77. 
supreme law. Art. <J, § 2 ; 72, 75, 78. 
"this" whole Constitution, 28,31, 

39, 44, 64, 232. 
to be executed by the government, 

29, 79, 129, 190, 410. 
and by the means authorized, 83, 

88. 
assigns no subject to the sole man- 
agement of local governments, 71. 
on the defensive, 43. 
a necessity unless objections insup- 
erable, 43, 77. — See " Enact- 
ment." 
construction of the, 46, 87, 318. 
imposes no duty to govern, on any 

but its own agents, 129. 
interferes with State action by ex- 
press prohibition or exclusion, 
341. 
Constitutional rights not abrogated hy 
statute. State or national, 58, 202, 
242. 
Contempt, punishment of, 169, 340, 

447. 
Continental Congress, power of, 91, 93, 
96, 98, 103, 495, 503. _ 
army, rules and regulations for, 97. 
officers of, 97. 

representation in, personal, not cor- 
porate, 91, 99. 
Contracts not impaired bv State legis- 
lation. Art. 1, § 10 ; "508. 
Convention direct Congress to execute 
the Constitution, 29. 
for proposing amendments. Art. 5 ; 
390. 
Copyright, 82, 356. 
Corporate franchises lost by mis-user or 

non-user, or surrender, 378. 
Courts, Supreme and inferior, vested 
j^'ith all the judicial powers. Art. 
3, § 1; 457. 
inferior, constituted, 370. 
judges of, appointed. Art. 3, § 1; 

Art. 2, § 2, cl. 2 ; 452. 
during good behavior. Art. 3, § 1 ; 

455. 
compensation, Art. 3, § 1 ; 455. 
jurisdiction of, original and appel- 
late, Art. 3; 370. 
martial, 353. 
Cox & Dick V. United States, 389. 



Dane, Nathan, 508. 
Dartmouth College case, 396. 
Davie, of North Carolina, 265. 
Debtor and creditor, law of, 387. 



Debts and engagements valid against 
the new government, Art. 6, ^ 1 ; 
230, 291, 385, 426. 

Congress has power to pay. Art. 1, 
§ 8, cl. 1; 295, 310, 426. 

Congress has distinct and indepen- 
dent power to pay, 317. 

for rebellion, insurrection, or eman- 
cipation, void, Am. 14th, § 4; 
401. 

cannot be owed by slaves, 215. 
Declaration of Rights in 1774; 93, 224, 
404. 

of citizenship in 1776 ; 96. 

of Independence, 49, 98. 

of Independence the law of the 
land, 231. 

of war, Art. 1, §^ 8,cl. 11; 349, 351. 
Defence, common Enacting Clause, 1 ; 
Art. 1, § 8. cl. 1; 118, 292, 295, 
310, 349, 426. 

historv of this clause, 40, 118. 

provide for the, 120, 312. 

source of the power, 121. 

distinct and independent power, 
317. 

duty of the government, 124. 

duty of the legislative department, 
124. 
Delegated, reserved, and prohibited 
powers, Am. 10th, 66, 68, 146, 
397. 
Delegates to Congress became the Rep- 
resentatives of the United States, 
91, 99. 
Departments of the government. Art. 

1, 2, 3; 150,430, 455. 
Detail, Committee of, their Report, 33, 

34, 207, 259, 314, 364. 

on subjects connected with slavery, 

208. 
followed the South-Carolina Plan, 

35, 208. 

diflerent from the final Draft, 38. 
Dickinson, John, 100. 
Direct taxes, apportioned on popula- 
tion. Art. 1. § 9, cl. 4; 156, 182. 
indirect taxes uniform, 41, 119. 
Disabilities of States, Art. 1,§ 10; 505, 
515. 
of aliens and slaves, 157. 
Disfranchisement, 268. 

of Indians not taxed, 61. 
District of Columbia, Art. 1, § 8, cl. 17 ; 

357, 378. 
Domestic tranquillity. Enacting Clause, 

1, 31, 116, 229. 
Dred-Scot case, 142, 219. 
Duties, Art. 1. § 8, cl. 1 ; 40, 290. 
on exports. Art. 1, §§ 9, 10; 208. 
on tonnage, ib. ; 427. 
on importations of persons, Art. 1, 

§ 9; 209, 415. 
and powers commensurate, 28, 56, 
77, 79, 80, 88, 90, 149. 



522 



INDEX. 



Duties and powers of government dis- 
tributed to the departments, 175, 
180. 

Dynasty, cliange of, no change of riglits, 
duties, or laws, Art. 4, 6; 230, 
311, 385, 387. 

Dynes v. Hoover, 354. 



Elections of Senators and Represen- 
tatives controlled. Art. 1, § 4, cl. 1 ; 

238, 244, 250, 255, 268. 
qualifications and returns, decided 

by each House, Art. 1, § 5 ; 166. 
■. the power to regulate very broad, 

239, 242, 244, 250, 259 

the power to regulate, its discus- 
sion and extent of, 260-270. 
Elective franchise. Art. 1, § 2; Am. 
14th; 59, 185,224, 238. 
the foundation of our government, 
225. 
Electors of Representatives must be 
citizens and residents in a State, 
Art. 1, § 2 ; 243, 256. 
of State Representatives, the same 

qualifications. Art. 1, § 2; 243. 
of Senators, the State Legislatures, 

Art. 1, § 3 ; 247, 248. 
of President and Vice-President, 
how chosen, Art. 2, § 1 ; Am. 12th ; 
431, 368. 
of President and Vice-President, 
duties and qualifications of, ib. ; 
343. 
Ellsworth, Mr. Chief Justice, 77. 
Enactment of the Constitution, Enact- 
ing Clause, 1, 31, 37, 39, 74. 
history of the clause, 32. 
one of the hist adopted, 42. 
part of the Supreme law, 32, 75, 84. 
mandatory ordained by the people, 

32, 38, 74, 86. 
not a preamble, 85. 
Encroachment of States on the na- 
tional authority, 101, 104, 112. 
Enumerated powers, 273, 289 
Enumeration of the people every ten 
years. Art. 1, § 2; 53, 235. —See 
" census." 
of sentences or clauses of the Con- 
stitution, an interpolation, 41. 
of rights, no disparagement of 
others, Am. 9th ; 397. 
Epitome of the Constitution, the Enact- 
ing Clause, 1, 31, 44, 78, 87. 
Equality of rights, a principle of re- 
publicanism, 223. 
Establish justice. Enacting Clause, 1, 

40, 113, 143 
Establishment of religion. Am. 1st; 396. 

freedom of. Am. 1st; 285, 396. 
Exceptions from and regulations of the 
appellate jurisdiction of the Su- 
preme Court, Art. 3, § 2; 370. 



Excessive bail or fines not required. 

Am. 8th; 397. 
Exclusive legislation, Art. 1, § 8, cl. 

17; 68, 340,357, 360. 
Executive Department, Art. 2 ; 430. 
unity of the. Art. 2 ; 430. 
heads of. Art. 2, § 2, cl. 1, 2; 184. 
power vested in the President, Art. 
2, § 1, cl. 1 ; 438. 
Expenditures and receipts, published, 

Art. 1, § 9, cl. 6; 430. 
Exports, duties on, Art. 1, §§ 9, 10 ; 208, 

412. 
Ex post facto law, not to be passed. 

Art. 1, §§ 9, 10; 284, 419, 422. 
Extradition, Art. 4, § 2, cl. 2, 3: 208. 



Faith and credit of State acts and 
records. Art. 4, § 1 ; 371. 
mode of proof and effect of, ib. 
Farmers and Mechanics' Bank v. 

Smith, 396. 
Federalist, 30, 44, 65, 79, 93, 106, 108, 
110, 119, 122, 131, 144, 224, 238, 
272, 276, 364. 
its character, 44. 
its purpose defensive, 44. 
Felony on the high seas, Art. 1, § 8, cl. 
10; 344. 
not privileged from arrest, Art. 1, 

§ 6;' 187. 
person charged with to be deliv- 
ered up, Art. 4, § 2, cl. 2; 184. 
Fessenden, William P., national law, 

345. 
Financial powers, 289, 310. 
Fines and bail not excessive. Am. 8th ; 

397. 
Fletcher v. Peck, 180, 419. 
Forfeiture of rights, 155, 378, 404, 423. 
Forts, magazines, arsenals, &c., Art. 1, 
§ 8, cl. 17; 357, 378. 
exclusive legislation of, ib. ; 357. 
purchased with consent of State 
legislatures. Art. 1, § 8, cl. 17; 358. 
Foundation of all free government, 
right of participation in legisla- 
tion, 224. t 
Fractions and units in the census, Art. 

1, § 2, cl. 3; 60. 
Franchise elective. Art. 1, § 2, cl. 1 ; Am. 
14th, § 2; 185, 224. 
foundation of our government, 225. 
terminates a status incompatible 

with it, 60, 159. 
corporate lost by mis-user or non- 
user, 378.. 
Franklin, Dr., his plan of confedera- 
tion, 32, 135. 
Free, ambiguity of, citizens, 56, 156, 
237. 
not alien, or slave, 55, 158. 
persons and other persons, are all 
persons, 115, 158, 212, 236. 



INDEX. 



523 



Freedom of speech, of the press, .and 
to assemble and petition, rights. 
Am. 1st; 286. 

Fngitives from justice and from labor, 
delivered up, Art. 4, § 2 ; 115, 
1S4, 187, lt)4, 20.3, 206. 

Fundamental law, supreme every- 
where, 31, 72, 159, 503. 



Gen'er.al welfiire, a purpose of the 
Constitution, Enacting Clause, 1, 
31, 70, 126. 
historj' of the clause, 32, 118, 126. 
a power of Congress, Art. 1, § 8, cl. 

1; 118, 130, 291, 312, 426. 
General and particular, relative 

terms, 301, .322. 
Generals not excluded by particu- 
lars, 148, 282, 323. 
Gerr\', Elbridge, 191. 
Gibbons v. Ogdcn, 124, 283, 327. 
Gold and silver coin. Art. 1, § 10, cl. 1 ; 

339. 
Gorham, Nathaniel, of Mass., 260. 
Government ordained and established. 
Enacting Clause, 1, 31. 
restricted, "410. 
firm national, 109, 129, 444. 
by whom, for whom, and whv, 1, 

31. 
adequate to its avowed purposes, 

77, 129. 
three departments of, organized, 

Art. 1, 2,3; 28, 430, 455. 
to execute the Constitution, 26, 75, 

83, 88, 129, 190, 196. 
deficient power of, 293. 
republican, model of, 224, 228. 
exclusive power of, 72, 342. 
subordinate or co-ordinate, 65, 67. 
its power and dutv commensurate, 

28, 30, 77, 79, 88, 90. 
temporary till 1776 ; 98. 
district, exclusive jurisdiction of. 

Art. 1, § 8,cl. 17; 72,357. 

succeeds to rights, duties, and laws 

of its predecessors, 230, 382, 387. 

republican for a State, what, and 

how organized, 228. 

Grayson, of Virginia, on co-ordinate 

governments, 108. 
Greene, General Nathaniel, 353. 
Grotius, 441. 

Guarantee of republicanism, Art. 4, 
§ 4; 220,246,255. 
requires the regulation of suffrage, 
246, 254. 
Gunpowder manufactured at the pub- 
lic expense, 97. 



Habeas Corpus not suspended. Art. 1, 

§ 9; 133, 145, 415, 417, 428. 
Haniilton, Alexander, 79, 82, 106, 108, 



120, 122, 130, 144, 1S6, 261, 272, 
276, 329. 
Hamilton, Alexander, his draft of a 

Constitution, 33, 36. 
Hampton v. McConnei, 372. 
Held to service, or bound to service, 

213, 215. 
Henrv, Patrick, 127, 263, 494. 
High seas. Art. 1, § 8, cl. 10 ; 344. 
History of the Enacting Clause, 32. 
clause regulating elections, 258. 
common defence and general wel- 
fare clause, 118, 310. 
provisions bearing on slaverj^ 206, 

208. 
legislation respecting slavery, 134. 
formation of the Confederation, 100. 
House of Representatives, Art. 1, § 2; 
149, 238. 
how composed, chosen, qualified, 
apportioned, and vacancies tilled, 
149, 156, 238. 
choose their own officers. Art. 1, § 2, 

cl. 5; 166. 
sole power of impeachment, ib. ; 167. 
judge of the election, qualification, 
and returns of their own mem- 
bers, ib. ; 167, 346. 
make their own rules, and punish 

contempts, ib. ; 169,346. 
keep and publish a journal, ib. ; 183. 
take and record the veas and nays, 

ib.; 167. 
adjournment of the, ib.; 170. 
compensation of, Art. 1, § 6; 167. 
privileged from arrest, ib.; 167. 
freedom of debate, ib. ; 286. 
hold no oflice under the government, 

ib ; 167. 
originate revenue bills, ib. ; 167. 
Houston V. Moore, 342. 
Hubbard, John H., on general welfare, 

295. 
Hudson & Goodwin, United States v., 
481. 



Impeachment, sole power of. Art. 1, 

§ 2, cl. 5; 167, 369, 434,437. 
sole trial of. Art. 1, § 3, cl. 6; 167. 
on oath, ib. 

without jury, Art. 3, § 2, cl. 3; 435. 
Chief .Justice to preside, in case, 

Art. 1, § 3, cl. 6; 167, 434. 
two-thirds necessary to convict, ib. ; 

168. 
punishment limited, how, ib. ; 168. 

368, 434. 
convict liable at law, ib. ; 168. 
no reprieve or pardon in cases of. 

Art. 2, § 2, cl. 1 ; 446. 
President, Vice-President, and all 

civil officers liable to, for certain 

offences. Art. 2, § 4; 168. 
and for treason, bribery and other 



524 



INDEX, 



high misdemeanors, shall be re- 
moved, ib. ; 168, 43-1. 
Impeachment, who else are liable to, 
and for what other offences, 168, 
434, 447. 
Importation or migration of persons 
not prohibited till 1808, Art. 1, 
§ 9; 208. 
may be taxed, ib. ; 208. 
Imposts or duties on imports or ex- 
ports, Art. 1, § 10, cl. 2, and § 9, 
cl. 5; 208. 
Inability of the President, what is it, 

.369. 
Independence, Declaration of, 49, 98. 

not repealed, 231. 
Indians not taxed. Art. 1, § 2, cl. 3; 
236; Am. 14th, § 2; 402. 
not citizens, because expressly ex- 
cluded, 61, 161. 
free, not bond, birthright, 161, 236. 
tribes, commerce with, 328. 
Indictment by grand jury, crimes 

prosecuted bj', Am. 5th ; 133. 
Inferior tribunals. Art. 1, § 8, cl. 9; 

Art. 3, § 1; 346, 455, 468, 482. 
Injustice not sanctioned, 115. 
Insurrections and invasions to be sup- 
pressed. Art. 1, § 8, cl. 15; 80, 
350. 
States protected against, Art. 4, § 4 ; 
190, 229. 
International law. Art. 1, § 8, cl. 10 ; 

114, 231, 344. 
Introduction, the Enacting Clause of 
the Constitution, 1, 31, 39, 74. 
its importance, 32. 
history of the clause, one of the last 

adopted, 32. 
how composed, 33. 
part of the supreme law, 39, 86. 
not a preamble, 85, 88. 
how different from prior forms, 37. 
Iredell, Mr. Justice, 265. 



Jackson, of Georgia, on slavery, 137. 
threats of civil war and murder, 137. 
Andrew, General, 418. 
Jay, Mr. Chief Justice, 76, 78, 93, 110, 

115. 119, 266. 
Jefferson, Thomas, 81, 128, 144, 273, 

275, 304. 
Johnson, William Samuel, Chairman of 

the Committee of Revision, 36. 
Johnston, Governor, of North Carolina, 

265. 
Journal, each House shall keep and 
publish. Art. 1, § 5, cl. 3; 183. 
of the Convention, 35,40. 
Judges appointed. Art. 2, § 2; 452, 455. 
tenure of office and compensation, 

Art. 3, § 1 ; 455. 
State, bound bv the supreme law. 
Art. 6, § 2 ; 185, 190, 229, 232, 395. 



Judges sworn to support the Constitu- 
tion, Art. 6, § 3 ; 233. 
Judgment on impeachment, in certain 
cases, shall be removal. Art. 2, 
§ 4; Art. 1, § 3, cl. 7; 168. 
in no case extend further than re- 
moval and disqualification, ib. ; 
168. 
Judicial power of the United States 
vested in its courts. Art. 3, § 1 ; 
456, 468. 
extends to all cases under the Con- 
stitution, Art. 3, § 2; 451, 457, 
463, 476. 
original and appellate, how dis- 
tnbuted. Art. 3, § 2, cl. 2; 370, 
468, 469. 
limited. Am. 11th; 398. 
proceedings, acts, and records of 
States, Art. 4, § 1; 371. 
Judiciary, Art. 2, § 1 ; 455. 
. co-ordinate and co-extensive with 
the other departments, 438, 451, 
456,461,467. 
Jurisdiction co-extensive with power, 
304. 
original, 468. 
appellate, 469. 
Jury, trial bv, in criminal cases, Art. 
3, § 2, cl. 3; 397. 
where and how, ib. ; Am. 6th ; 397. 
in civil suits at common law. Am. 

7th; 388, 397. 
facts re-examined according to com- 
mon law only. Am. 7th ; '388. 
Justice, to establish, a purpose of the 
Constitution, Enacting Clause, 1, 
31, 113, 143. 
not violated by the Constitution, 

115, 143. 
the power weakened by the eleventh 

Amendment, 398. 
fugitives from. Art. 4, § 2, cl. 2; 
184, 187, 203. 



KE3ST, Mr. Chancellor, 100, 144, 332, 

419, 431, 441, 451, 461, 481, 485. 
King, Rufus, 260, 314. 



Labor, fugitives from, Art. 4, § 2, cl. 

3; 115, 184, 187, 194,206. 
Law, admiraltv and maritime. Art. 3, 

§ 2, cL 1; 463, 477. 
common and equity. Art. 3, § 2, 

cl. 1; Am. 7th, 11th; 345, .387, 

458. 
of nations. Art. 1, § 8, cl. 10; 114, 

345, 344. 
martial. Art. 1, § 8, cl. 11; 849,851, 

352, 418. 
supreme, Constitution, laws, and 

treaties. Art. 6, § 2; 30, 69, 232, 

342, 457. 



INDEX. 



525 



Law not changod by change of dynas- 
ty, 230, 385. 
Lawrence, of New York, 188, 193, 294. 
League, between State legislatures, 
the Confederation of 1781; 37, 
54, 103. 
United States not a party, 104. 
could not increase their own powers, 

104. 
or diminish those of the Union, 104. 
defects of, 100. 
Lee, Richard Henry, 127. 
Legal, what violates no law, 69, 145, 
146. 
bond, 163. 
Legislation in fayor of slayery, 134- 
143. 
exclusiye. Art. 1, § 8, cl. 17; 71, 
_ 340, 357, 360, 384. 
Legislatiye Department, Congress, Art. 
1, § 1 ; 150. 
organization of, 150. 
powers of, general, 175. 
special, 2.35. 

all legislative powers of the govern- 
ment, 180, 286. 
what are, 176. 
how restricted, 180, 410. 
Letters of marque and reprisal, 350. 
Liberty, secure the blessings of. Enact- 
ing Clause, 1, 31, 133. 
power abandoned by the govern- 
ment, 134, 138, 141, 143. 
life, and property, security of. Am. 
5th, 14tii; 94,'l33. 
Lincoln, Abraham, President, 140, 142. 
Livermore, Samuel, 139. 
Local governments, organized under 
the auspices of Congress, 52, 64, 
95, 104, 492, 498.— See " State." 
useful and indispensable, 65. 
recognized, subordinate, 66, 67. 
not supreme or exclusive on any 
subject, 71. 
Loughborough v. Blake, 72, 361, 384. 



McCuLLOCii V. Maryland, 292, 342, 

358, 367. 
McFingal on war, 440. 
McLean, air. .Justice, 129. 
Madison, James, 41, 45, 78, 105, 108, 

120, 122, 128, 130, 136, 143, 186, 

188, 193, 240, 260, 263, 286, 296, 

307, 437. 
Manner of elections, 250, 252, 260. 
Maritime law. Art. 3, § 2, cl. 2 ; 455, 

457, 463. 
Marshall, Mr. Chief Justice, 72, 78, 

124, 146, 178, 248, 283. 291, 396, 

459, 462, 365, 367. 
Martial law, 352, 418, 441, 444. 

courts, 354. 
Martin v. Hunter, 186. 
Maryland, 101. 



Mason, George, 127, 264, 292. 

Jeremiah^ 280, 396. 
IMassachusetts, 92, 94, 103, 279. 
Maxims, 30. 
Means and ends commensurate, 79, 

147. 
Miflin, Warner, his petition returned, 

139. 
Migration and importation of persons, 

Art. 1, § 9, cl. 1; 115, 208, 283, 

414. 
duty on, 209, 415. 
Militia, organized, armed, disciplined, 

called out, and governed in ser- 
vice, 80, 313, 350. 
officered and trained. Art. 1, § 8, cl. 

15, 16; 67, 414. 
INIilligan, ex parte, case of, 354. 
Mills V. Duryee, 372. 
Misnomer, 88. 
Model of republican government, 224, 

228. 
J/ort droit, the principle of monocracy, 

223. 
Money, coined, valued, foreign, Art. 1, 

§ 8, cl. 5; 337. 
no State shall coin. Art. 1, § 10, cl. 

1; 189. 
gold and silver, ib. ; 339. 
appropriation of, bylaw. Art. 1, § 9, 

cl. 6; 285, 291, 426. 
Monroe, James, 127, 132, 273, 298, 303. 
Morris, Gouverneur, 152, 259, 314. 
. Kobert, 266. 



Nation, the people became tempora- 
rily, in 1774; 48. 
permanently, in 1776; 49. 
unity of the, 48, 50. 
sovereignty of a, 49, 69, 90, 94, 99. 
a peifect union, 110. 
the sole party to the Constitution, 
38, 91. 
Nationality, attributes of, exercised 
before the Declaration, 49, 93, 98. 
proclaimed by it, 49, 98. 
reaffirmed in the Constitution, 49, 
107. 
Naturalization in 1776 ; 53, 56, 96. 
uniform rule of, 332. 
power of, Art. 1, § 8, cl. 4; 332, 
3.35. 
Navigation, Art. 1, § 9, cl. 5 ; 209, 327. 
Navy of the United Colonies, 97. 

power to provide and maintain, Art. 
1, § 8, cl. 13; 350. 
New Hampshire, 92, 94, 103, 278. 
New Jersey Plan, 32, 34, 93, 249. 
New States admitted. Art. 4. § 3, cl. 
1; 373, 427. 
how get out of the LTnion, 374. 
New York, 92, 96, 102, 491. 
Nobility, title of. Art. 1, §§ 9, 10; 285, 
427. 



526 



INDEX. 



Non-importation in 1774 ; 93. 

of slaves, 98. 
North Carolina, 102, 264. 
Nullification in 1776; 102. 
Numerical designation of clauses no 
part of the Constitution, 41. 



Oath of office. President's, Art. 2, § 1, 
cl. 9; 433. 
national and State officers. Art. 6, 

§ 3; 185, 187, 191, 294. 
senator's, on court of impeachment, 
Art. 1, § 3, cl. 6; 167. 
Obligation of slaves, 163, 215. 
Offences, impeachable, Art. 2, § 4 ; 168, 
434, 447. 
against the law of nations, Art. 1, 
§ 8, cl. 10 ; 344. 
Officers of each House appointed, Art. 
1, §§2, 3; 166,169. 
of the United States, not members 
of Congress, Art. 1, § 6, cl. 2 ; 167. 
appointed, 369, 4.52. 
established by law, 452. 
civil, impeached and removed for 
certain offences, Art. 2, § 4; 168. 
of army of 1775, appointed, 97. 
not to accept presents, &c., from 
foreign governments. Art.. 1, § 9, 
cl. 7; 427. 
inferior, how appointed, 369. 
who are they, 370. 
Ogden V. Saunders, 147. 
One people, a nation, 49, 53, 93, 98. 
ordain and establish, mandatory, 
74, 77. 
Ordinance of 1787; 211, 231. 
Ordinances of the Revolutionary gov- 
ernment, 386. 
Organization of the government, Art. 
1, 2, 3; 149. 
legislative department, 150. 
House, 150. 
Senate, 164. 
separate powers, 166. 
executive department, Art. 2, Am. 

12th; 430. 
judicial department. Art. 3; 455. 
Omnibus committee, Mr. Brearlej'-, 

chairman, 118, 314. 
Opinion, public, theory of republican- 
ism, 223. 
Osborn v. the Bank of the United 

States, 292, 461, 462, 466. 
Other persons than free persons, Art. 
1, § 2, cl. 3; 161, 212. 
not aliens or slaves, 161, 162. 



Pardoning power, Art. 2, § 2, cl. 1 ; 

446, 447. 
Parsons, Mr. Chief Justice, 262. 
Particulars and generals, relative terms, 

301, 322. 



Particulars and generals not exclusive 

of each other, 282_, 289, 323. 

Parties to the Constitution, the people 

only. Enacting Clause, 1, 38, 109. 

political, pledged to sustain slaverv, 

143. 

Patent right, Art. 1, § 8, cl. 8; 82, 

356. 
Patterson, Mr. Justice, New-Jersey 

Plan, 32, 34. 
Pay and provide. Art. 1, § 8, cl. 1 ; 312. 
Pennsylvania, 92. 
People, citizens, 55, 157, 225. 
who were in 1776; 53. 
choose representatives, Art. 1, § 2, 

cl. 1 ; 150, 240. 
successors to the imperial govern- 
ment, 48. 51, 91, 9H, 496. 
recognized rights of, 58, 150. 
sole parties to the Constitution, 
Enacting Clause, 1, 38, 47, 49, 53, 
109. 
People V. Goodwin, 395. 
Persons, free and other, Art. 1, § 2, cl. 
3; 56, 62, 115, 156, 158, 213, 237. 
all, not evervbody, 237. e con, 54. 
. bond, 214. 

importation and migration of, Art. 

1, § 9, cl. 1; 115. 
held to labor for years, Art. 1, § 2, 
cl. 3; 160, 162, 213. 
under State laws, Art. 4, § 2, 

cl. 3; 215. 
escaping to be delivered up, 
ib.;115. 
Petitions to Congress from colonies for 
civil government, 94. 
against slavery, 134, 139, 142. 
Pickering, John, impeached, 168, 437. 
Pincknev, Charles. South-Carolina 
Plan, 32, 106, 207. 
followed by the Committee of De- 
tail, 34, 208. 
Charles Cotesworth, 207, 266. 
Piracies and felonies on the high seas, 

Art. 1, § 8, cl. 10; 344. 
Places of election, 251. 
Post-office and post-roads, Art. 1, § 8, 
cl. 7; 342, 346. 
established, and postmaster-general 
appointed, in 1775 ; 97 
Postulate, Constitution law, and gov- 
ernment to execute it, 30. 
Powers, legislative, vested in Congress, 
Art. 1, § 1; 181. 
executive, vested in the President, 

Art. 2, § 1, cl. 1 ; 430, 438. 
judicial, vested in the courts. Art. 

3, § 1; 455. 
of government not lost by non-user 

or disclaimer, 127, 143. 
against slavery' not to be exercised,. 

disclaimed, 134, 138, 140, 143. 

purposes and dtities commensurate, 

28, 56, 77, 80, 90, 128, 147, 149. 



INDEX. 



527 



Powers, legislative, not delegnted to 
States, 145, 181. 

exclusive, U6, 340, 360. 

distinct and independent, 317. 

and jurisdiction cu-extensive, 304. 

separate, of the two Houses, Art. 1, 
§§ 2, 3, 5, 7; 1G6. 

delegated, prohibited, and reserved, 
Am. 10th; 08, 146. 

restricted, must exist, 283. 
Preamble, Enacting Clause is not, 1. 

misnomer, 84, 88, 121. 
Presents, office, and title from foreign 
governments proliibited to offi- 
cers. Art. 1, § 9; 427. 
President, executive power vested in, 
Art. 2, § 1 , cl. 1 ; 430, 438. 

commander-in-chief. Art. 2, § 2, cl. 
1; 439, 441. 

how chosen. Art. 2, Am. 12th; 431. 

official term, qualifications, compen- 
sation, oath of office. Art. 2; 433. 

removed for certain oft'ences, by im- 
peachment. Art. 2, § 4 ; 168, 434. 

death, removal, resignation, or ina- 
bility of. Art. 2, § 1, cl. 6; 368, 
432. 

his powers and duties, Art. 2, §§ 2, 
3; 438. 

reprieves and pardons, ib. ; 435, 446. 

treaties, ib.; 170, 447. 

appointments to office, and vacan- 
cies, ib.; 369, 452. 

information and recommendations 
to Congress, ib. 

convene either or both houses, and 
adjourn them in case, ib. ; 451. 

receive public ministers; ib. ; 451. 

commission officers, ib. ; 453. 

take care that the laws be faithfully 
executed. Art. 2, § 3: 439, 451. _ 

restrictions and limitations of his 
duties, 451. 
Prigg's case, 187, 194, 218. 
Privateers authorized, 1775; 97. 
Privileges and immunities of citizens 
Art. 4, § 2; Am. 14th, § 1; 184 
198, 202, 401. 

of members from arrest. Art. 1, § 6 
167. 
Prize cases, 351. 
Prizes and captures. Art. 1, § 8, cl. 11 

97, 350. 
Property of the United States regu- 
lated or disposed of, Art. 4, § 3, 
cl. 2; 382. 

private, taken for public use, com- 
pensation. Am. 5th ; 394, 397. 

slaves are, and not persons, 57, 60. 
Public acts, records, and judicial pro- 
ceedings. Art. 4, § 1 ; 371. 

ministers appointed. Art. 2, § 2. 

received. Art. 2, § 3; 451. 

within the judicial power. Art. 3, 
§2; 462. 



Public opinion, in theorj' the govern- 
ment of republics, 223, 226. 

use, propert}' taken for, to be com- 
pensated, "Am. 5th; 394, 397. 
Publication of receipts and expendi- 
tures. Art. 1, § 9, cl. 6; 183. 
Punishment of counterfeiting. Art. 1, 
§ 8, cl. 6 ; 344. 

piracies and felonies on high seas, 
ib., cl. 10; 344. 

offences against the law of nations, 
ib,; 344. 

treason, Art. 3, § 3, cl. 2; 370, 423. 

on impeachment, extent of. Art. 1, 
§ 3, cl. 7; 168. 

must be removal in certain cases, 
Art. 2, § 4 ; 168. 

of members, by each house. Art. 1, 
§ 5, cl. 2; 166. 

for contempt by each house, IGO, 
346. 

cruel and unusual, prohibited, Am. 
8th; 397. 
Purposes of the Constitution, Enacting 
Clause, 1, 37, 39, 90, 147. 

include a power, 80, 88, 147. 

first, union, 91; second, justice, 
113; third, tranquillity" 116; 
fourth, defence, 118; titth, welfare, 
126 ; sixth, liberty, 133. 



Qualifications of voters. State and 

national, Art. 1, § 2; Am. 14th; 

150, 153, 155, 227, 405. 
identical, 151, 243, 405. 
citizenship and residence, Arts 1, 

§ 2, cl. 1; 153, 227, 243, 256, 261, 

405. 
males, 21 years of age, Am. 14th, 

§ 2 ; 405. 
for the exercise of the right, 154, 

155, 238, 242, 250, 405. 
of Representatives, Art. 1, § 2, cl. 2 ; 

Am. 14th, § 3; 156,262, 407. 
Senators, Art. 1, § 3, cl. 3; Am. 

14th, § 3; 254, 407. 
President, Art. 2, § 1, cl. 5; Am. 

14th, § 3; 407. 
electors of President, Art. 2, § 1 ; 

Am. 14th, § 3; 407, 431. 
the taxing power. Art. 1, § 8. cl. 1, 

§ 9, cl. 4, 5; 291, 304. 
Quartering soldiers in private houses. 

Am. 3d; 397. 
Quorum for business of the two 

houses, a majority, Art. 1, § 5; 

166. 
of the house for choosing President, 

Am. 12th, § 1; 171,432. 
of the Senate for choosing Vice- 
President, Am. 12th, § 2; 171. 
less than a, mav do certain things, 

Art. 1, § 5; 166. 



528 



INDEX. 



Randolph, Edmund, Virginia Plan, 

■32, 207. 
Ratification of nine States sufficient. 

Art. 7; 234, 490. 
Rebel Constitution, 109. 

States, government of, 428, 432, 445. 

reconstruction of, 376, 445. 
Receipts and expenditures published, 

Art. 1, § 9; 183. 
Reconstruction, 377, 428, 445. 
Records, acts, and judicial proceedings, 

Art. 4, § 1; 371. ' 
Regulation of commerce. Art. 1, § 8, cl. 

3; § 9, cl. 5; 326. 
elections, Art. 1, § 4 ; 166, 241, 243, 

250, 259. 
times, 250. 
places, 251. 
manner, 252. 
the value of money, Art. 1, § 8, cl. 

5; 837. 
captures on land or water. Art. 1, 

§ 8, cl. 11; 350. 
land and naval forces. Art. 1 ; § 8 

cl. 14; 350. 
the appellate jurisdiction of the 

Supreme Court, Art. 3, § 2, cl. 2 ; 

469. 
States, not to discharge from ser- 
vice, Art. 4, § 2, cl. 3; 187. 
territory and property of the United 

States, Art. 4, § "3, cl. 2 ; 230, 

378, 382. 
and exceptions from the appellate 

jurisdiction of the Supreme Court, 

370. 
Religious test, none, Art. 6, § 3 ; 429. 
establishment, freedom, Am. 1st; 

396. , 
Removal on impeachment. Art. 1, § 3, 

cl. 7; Art. 2, § 4; 168, 368. 
Representatives, chosen bj^ the people, 

citizens and residents of the State, 

Art. 1, § 2, cl. 1; 150, 240. 
every second year, qualifications of. 

Art. 1, § 2, cl. 2; Am. 14th, § 3; 

150, 156. 
number and apportionment of. Art, 

1, § 2, cl. 3; Am. 14th, § 2; 182, 

236. 
vacancies how filled, Art. 1, § 2, cl. 

4; 156. 
choose their own officers. Art. 1, § 2, 

cl. 5; 166. 
have the sole power of impeach- 
ment. Art. 1, § 2, cl. 5 ; 167. 
judge of elections, and qualifica- 
tions of their own members. Art. 

1, § 5, cl. 1; 166. 
a majority a quorum for business. 

Art. 1, § 5, cl. 1 ; 166. 
a less number may adjourn from 

day to day, ib. ; 166. 
and "may be authorized to compel 

attendance," ib. ; 166. 



Representatives, make their own rules, 
punish, and expel members, ib., 
cl. 2; 166. 
may adjourn in certain cases, Art. 

1, § 2, cl. 4; 170. 
compensation of. Art. 1, § 6; 167. 
fi-eedom of debate, and privileged 

from arrest, ib. ; 167. 
not appointed to any civil office, or 
hold any office, ib., Art. 2, § 1, cl. 
2; 167. 
originate revenue bills, Art. 1, § 7 ; 

167. 
duties in the choice of President, 

Am. 12th; 171. 
in revolutionaiy Congress, 91. 
keep and publish a journal, Art. 1, 

§ 5; 166. 
yeas and nays. Art. i, §§ 5, 7; 167. 
Republicanism of the Constitution, 
224. 
of the State governments. Art. 4, 
§4; 57, 152, 154, 184, 220, 228, 
246. 
what is, 221, 224. 
by external agencj', 490. 
Requisite in Art. 1, § 2, cl. 1, refers no 
more to State than national legis- 
lation, 152, 257. 
Reservation, not of what had been 

parted with, 67, 69. 
Resignation, how proved, 369. 
Resolution, order, or vote concurrent, 
same as a bill. Art. 1, § 7, cl. 3 ; 
173. 
of independence, 53. 
for State governments in 1776 ; 52, 

94, 95. 
of citizenship in 1776; 53, 55, 96. 
Restrictions prove the power restricted, 

283; Art. 1, § 9; 287,410,451. 
Revenue by taxation, 290. 

bills originate in the House of Rep- 
resentatives, 167. 
Revision, Committee of, 33, 36. 
their draft, 212. 
Enacting Clause, 1, 36, 40. 
Revolutionary authority, unlimited, 91, 
96. 
supreme sovereignty, 98. 
Rhode Island, 491. 

Eights, constitutional, not abrogated by 
statute, 58, 145, 202, 242. 
of citizens, 58, 64, 198, 242. 
duties, and laws not abrogated by 

the Constitution, 387. 
to choose Representatives, Art. 1, 

§ 2, cl. 1 ; 185, 489. 
suffrage, Am. 14th, § 2 ; 59, 185, 242, 

489. 
habeas corpus, Art. 1, § 9 ; 59, 133, ' 

145, 284, 415, 417. 
exemption from attainder and ex 
post facto laws, Art. 1, § 9; 284, 
419, 423. 



INDEX. 



529 



Rights, exemption from capitation and 

direct taxes, unless. Art. 1, §§ 9, 

10; 208. 

exemption from prohibited State 

laws, Art. 1, § 10 ; Art. 6, § 2 ; 2.32. 

eligibility to the ofiice of President, 

Art. 2, § 1 ; 43.3. 
trial by jmy for crimes, in the State 
where committed. Art. 3, § 2, cl. 
3; 897. 
exemption fi*om treason without two 
witnesses. Art. 3, § 3, cl. 1; 513. 
privileges of citizenship in every 
State, Art. 4, § 2, cl. 1 ; 184, 202, 
401. 
freedom of religion, Am. 1st. 
speech and press, ib. ; 286, 396. 
assemble and petition, ib. ; 286, 396. 
keep and bear arms. Am. 2d; 286, 

396. 
exemption from soldiers in his house. 

Am. 3d; 397. 
exemption from unreasonable 
searches and seizures. Am. 4th; 
397. 
exemption from illegal warrants, 

ib.; 397. 
exemption from trial for crime un- 
less on indictment of Grand Jury, 
Am. 5th; 397. 
exemption from from being twice 

tried, ib.; 397. 
exemption from being compelled to 
witness against himself, ib. ; 397. 
exemption from excessive bail or 
fines, or cruel punishment, Am. 
8th; 397. 
exemption from slaverj' or involun- 
tary servitude, Am. 13th; 164, 
399. 
to life, liberty, and property, unless, 

ib.; 59, 397. 
compensation for property taken for 

public use. Am. 5th; 397. 
trial by jury and means of defence 
in criminal case, Am. 6th; 145, 
397. 
and in civil cases, and no re-exam- 
ination but by common law, Am. 
7th; 397. 
to equal protection of law in every 
State, Am. 14th, § 1 ; 401. 
Rhode Island, 491. 
Robinson v. Campbell, 389, 486. 
Rules of naturalization and bankruptcj'. 
Art. 1st, § 8, cl. 4; 333,335. 
for captures bv sea and land. Art. 

1, § 8, cl. 11"; 97. 
governing militarv and naval forces, 

Art. 1, § 8, cl. 14; 3-50. 
of common law, Am. 7th; 387, 397. 
each house make their own, Art. 1, 
§ 5; 166. 
Rutledge, John, chairman of the Com- 
mittee of Detail, 34, 207, 364. 



ScAMjESS.\MiN and Ballcyliack Rail- 
road, 86. 
Science and arts, to promote, Art. 1, 

§ 8, cl. 8; 82, 356. 
Scot, Dred, case of, 142, 219. 
Scott, Thomas, of Pennsylvania, on 

slavery, 136. 
Security of liberty, a purpose of the 
Constitution, Enacting Clause, 1, 
31, 133. 
under the guardianship of the gov- 
ernment, 133. 
deliberately abandoned, 134, 138, 

140, 143. 
persons, houses, papers, &c.. Am. 

4th; 119, 397. 
life, liberty, and property. Am. 5th ; 
119, 133. 
Senate, organized, chosen, qualified, 
classitied, vacancies, Art. 1, § 3; 
164, 247. 
term of service. Art. 1, § 3 ; 165. 
choose their own officers, except, 

166, 169. 
duties in election of President and 

Vice-President, Am. 12th; 171. 
sole trial of impeachments. Art. 1, 

§ 3, cl. 6; 167. 
judge of qualifications, &c., of their 

own members. Art. 1, § 5; 166. 
make their own rules, punish, or 
expel members. Art. 1, § 5 ; 166. 
punish for contempt, 169, 346. 
keep and publish a journal. Art. 

1, § 5; 166. 
take and record j^eas and nays, in 

case, Art. 1, §§ 5, 7; 167, 271. 
compensation and privilege from 

arrest. Art. 1, § 6 ; 167. 

freedom of debate, Art. 1, § 6 ; 167. 

be appointed to no civil office, or 

hold any office, except, Art. 1, 

§ 6; Art. 2, § 1, cl. 2; 167. 

amend revenue bills, Art. 1, § 7; 

167. 
advisory council of the President, 
Art. 2, § 2; 170, 447, 452. 
Sherman, Roger, 118, 310. 
Ships of war authorized in 1775; 97. 
States not to keep. Art. 1, § 10, 
cl. 2; 512. 
Slaves and slavery, trade abolished in 
1774; 94, 98, 105, 134, 159, 187, 
207. 
destitute of rights, not citizens, 57, 

60, 159. 
for term of years, 160, l62, 213. 
none in the United States legally, 

59, 164, 187. 
history of the Constitutional pro- 
visions relating to, 206. 
legislation concerning, 134, 141. — 

See ''Persons." 
cannot be under legal bonds, 163, 
164, 215. 
34 



530 



INDEX. 



Slaves and slavery unconstitutional, 
136, 143, 164, 400. 

prohibited, Am. 13th; 164. 
Soldiers not quartered in a house, un- 
less, Am. 3d; 397. 
South Carolina, 32, 95, 207, 259. 
Sovereigntv, supreme, of the people, 54, 
91, 93", 99. 

exercised before the Declaration, 47, 
93, 98, 100. 

two sovereignties cannot co-exist, 
91, 108, 111, 222. 
Spencer, Mr. Chief Justice, 395. 

Mr., of North Carolina, 264. 
State duties, powers, and rights, 380, 
488, 495. 

by the law of nations, what is, 380, 
464, 492. 

in the Union and under the Consti- 
tution, what is, 380, 464, 492. 

held under and subject to the Con- 
stitution, 64, 68, 186, 374, 476. 

disclaimed by the Confederation, 500 

authorized to perform the duties en- 
joined, 66, 129, 181. 

may do other things not contrary to 
law, 69. 

governments of, 64, 101, 105, 144. — 
See "Local." 

sovereignty, 71, 111, 503. 

nine establish the Constitution, Art. 
7; 234, 490. 
States, not altered to form new States 
without consent. Art. 4, § 3 ; 427. 

how get in and how get out of the 
Union, 373, 374, 488. 

have representatives chosen by the 
people, Art. 1, § 2, cl. 1 ; 185, 228. 

executive issue writs of election, in 
case, ib., cl. 4; 156. 

have two senators, chosen by their 
legislature, Art. 1, § 3 ; 164, 247. 

and not deprived by alteration of 
the Constitution, Art. 5 ; 428. 

regulate elections, subject to Con- 
gress, Art. 1, § 4, cl. 1 ; 238, 244, 
250, 255. 

relinquish jurisdiction over portions 
of their territory, Art. 1, § 8, cl. 
17; 358. 

admit migration or importation of 
persons till 1808, Art. 1, § 9, cl. 
1; 414. 

appoint electors to vote for Presi- 
dent bv ballot, Art. 2, § 1, Am. 
12th, Uth; 413. 

give faith and credit to acts, records, 
&c., of other States, Art. 4, § 1 ; 
371. 

deliver up fugitives from justice. 
Art. 4, § 2, cl. 2; 187. 

claims to territory not disparaged, 
Art. 4, § 3, cl. 2; 230,382. 

have a republican government. Art. 
4, § 4; 221,224,227,229. 



States, have protection against invasion 
and violence. Art. 4, § 4 ; 229. 

have a voice in the ratification of 
amendments, Art. 5 ; 390. 

judges bound bv the supreme law. 
Art. 6, § 2; 185. 

ofificers under oath to support the 
Constitution, Art. 6, § 3; 186, 
191. > ^ . > 

sue and sued by other or foreign 

States in the Supreme Court, Art. 

3, § 2; 464. 
not sued by citizens of other or 

foreign States, Am. 11th ; 398. 
State disabilities and restrictions, 145, 

505, 515. 
under the Confederation, 501. 
from making treaty, alliance, or 

confederation. Art" 1, § 10, cl. 1; 

503. 
any agreement or conrpact with 

another or foreign State, ib., cl. 

2; 503. 
granting letters of marque or re- 
prisal. Art. 1, § 10, cl. 1; 505. 
coming monej^, emitting bills, or 

making tender, unless of gold or 

silver coin, ib., 189, 505. 
passing attainder, or ex jwsi facto 

laws, or impairing contracts, ib., 

419, 508, 511. 
granting anv title of nobility. Art. 

1, §§ 9, lU; 511._ 
laying duties on imports, exports, 

or tonnage, unless, Art. 1, § 10, 

cl. 2; 512. 
keeping troops or ships of war in 

peace, or making war, ib. ; 512. 
discharging fugitives from labor, 

Art. 4, §2, cl. 3; 187. 
suspending liabeas corpus, or doing 

what the Constitution prohibits 

being done. Art. 1, § 9, and all 

the Amendments, 512. 
abridging privileges of citizens, or 

protection of the laws. Am. 14th, 

§ 1; 401. 
abridging the right to vote for cer- 
tain officers, Am. 14th, § 2; 401. 
paj'ing any debt incurred for rebel- 
lion or emancipation. Am. 14th, 

§ 4; 401. 
Story, Mr. Justice, 40, 86, 107, 125, 

131, 144, 218, 224, 308, 315, 336, 

419, 450, 458, 481. 
Sturgis V. Crowningshield, 146. 
Sufirage, a right of citizenship, 59, 154, 

185, 222, 225, 241, 246, 404. 
regulation of, necessary to secure 

republicanism, 246. 
the foundation of liberty, 224, 404. 
Supreme Court established. Ait. 3, § 1 ; 

184, 455. 
cited, 142, 239, 247, 248, 351, 431, 

360, 389. 



INDEX. 



531 



Supreme Court, judicial power vested 

ill, Art. 3, §1; 45G 
original jurisdiction of. Art. 3, § 2, 

cl. 2; 4G8. 
appellate jurisdiction in all other 

cases, ib. ; 469. 
law of the land. Art. 6, § 2 ; 39, 72, 

186, 282, 248. 
State judges bound by, and officers 

on oath to, Art. 6, §§ 2, 3; 232. 



Taney, Mr. Chief Justice, 184, 199, 

396. 
Taxes, duties, imposts, and excises, by 
Congress, Art. 1, § 8, cl. 1 ; 40, 
81, 290. 
capitation and direct, apportioned 
on the census, Art. 1, § 9, cl. 4; 
182, 411. 
indirect, as duties, imposts, and ex- 
cises, to be uniform. Art. 1, § 8, 
cl. 1; 41, 119, 290,316. 
on exports from a State prohibited, 

Art, 1, § 9, cl 5 ; 208, 412. 
not restricted to revenue, 291. 
Taxing power, qualification of, 208, 290, 

236, 291, 304, 411. 
Terrett v. Taylor, 180. 
Territory or property of United States 
disposed of, or regulated. Art. 4, § 
8, cl. 2 ; 230, 378, 382. 
State claims to, not prejudiced, ib ; 
382. 
Test, religious, not required, Art. 6, § 3; 

285, 429. 
Texas became a State in the Union, 

333, 448. 
Times of election, 250. 
Title of nobility, none by State or na- 
tion, Art.'l, §§ 9, 10; 285, 427. 
present, office, &c., not accepted by 
an officer, from a foreign State, 
Art. 1, § 9; 427. 
Trade regulated in 1774; 50, 93, 98, 
208. 
in slaves in 1774, abolished, 94, 98. 
Tranquillity, domestic, a purpose of the 
Constitution, Enacting Clause, 1, 
90, 116. 
Treason, felony, &c., not privileged 
from arrest, Art. 1, § 6; 167. 
persons charged with, delivered up. 

Art. 4, § 2, cl. 2; 208. 
bribery, &c., oflicers removed for, on 
impeachment. Art. 2, § 4, 168, 
434. 
defined, requires 'two witnesses or 
confession for conviction, Art. 3, 
§ 3; 513. 
Congress declare the punishment of. 

Art. 3, § 3, cl. 2 ; 370, 423. 
no attainder of, to work after trai- 
tor's death, ib ; 423. 



Treasury', appropriations from, made 

by law, Art. 1, § 9, cl. 6; 426. 
Treaties, part of the supreme law. Art. 
•6, § 2; 448. 
how made, Art. 2, § 2, cl. 2; 170, 

447. 
leagues, or confederations, 37, 107. 
Treaty-making power, 333, 447, 450. 
Trials, criminal, by jury, except, Art. 
3, § 2; 397. 
ill the State, or where Congress ap- 
point, Art. 3, § 2, cl. 3; Am. 6th: 
397. 
in suits at common law by juiy. Am. 

7th; 388, 397. 
re-exainined only according to com- 
mon law, ib. ; 388. 
Tucker, of South Carolina, on slavery, 
137. 



Uniformity, rule of. Art. 1, § 8, cl. 1 ; 

41, 119, 290, 312, 316, 411. 
Union, more perfect, a purpose of the 
Constitution, Enacting Clause, 1, 
90, 107, 104. 
parties to, the people, not States, 

Enacting Clause, 1, 93, 109. 
in distinction from league or con- 
federation, 107, 110. 
how States get in, and how States 
get out of, the, 374. 
United Colonies, 50, 53, 93. 
United States, the nation, corporate 
name, and country. Enacting 
Clause, 1, 63. 
same name in the Declaration, 63. 
V. Coolidge, 483. 
Units or fractions, free persons and oth- 
ers. Art. 1, § 2, cl. 3; 60,412. 
Unity, nationality, 48. 
dilapidation of, 91, 99. 
retracted, 111. 

of the executive department. Art. 2, 
§ l,ch 1; 430, 438. 



Vacancies in the House, Art. 1, § 2, 
cl. 4; 156. 
in the Senate, Art. 1, § 3, cl. 2; 165. 
in the executive. Art. 2, § 1, cl. 6; 

368. 
in other offices. Art. 2, § 2, cl. 3; 
453. 
Vattel on sovereignty, 47, 441. 
Veto of the President, Art. 1, § 7; 172. 
how overruled. Art. 1, § 7 ; 173, 271. 
to what it does not apply, 173. 
Vice-President presides in the Senate, 
no vote unless. Art. 1, § 3, cl. 4; 
434. 
liable to impeachment. Art. 2, § 4 ; 

434. 
how chosen, qualified, term, &c., 
Art. 2 ; Am. 12th, 14th ; 431. 



532 



INDEX. 



Vice President, powers and duties of 
President, in case, Art. 2, § 1, cl. 
6; 868, 432. 

Virginia, plan of government, 32, 91, 
95, 206, 491. 

Voters, qualifications of, citizenship and 
residence. Art. 1, § 2; 151, 153, 
227, 256, 261, 405. 

Voting by States originated, a confed- 
eration measure, 99. 



Wae, power to declare, Art. 1, § S, cl. 
11; 123, 345, 349, 449. 
may exist without, 339, 351. 
ria,hts and duties involved in, 150, 

"350. 
martial law, 152, 352, 417. 
t States not to engage in, or keep 
ships of, in time of peace. Art. 1, 
§ 10, cl. 2; 512. 
Wan'ants, how issued, searches and 

seizures. Am. 4th; 897. 
Washington, commander - in - chief, 
1775; 97. 
cited, 77. 
"We, the people, Enacting Clause, 1, 31, 
47, 109. 



We, the people, only sovereignty, 48, 
222 225. 
their nationality, 35, 48, 49. 
who are the people, 49, 58. 
the successors of the- imperial gov- 
ernment, 51. 
Webster, Daniel, 27, 189, 241, 388. 
Weights and measures. Art. 1, § 8, cl. 

3; 340, 343. 
Welfare, general, a purpose of the Con- 
stitution, Enacting Clause, 1, 31, 
312. 
a power of Congress, Art. 1, § 8, 
cl. 1; 40, 126, 180, 291, 295, 810, 
317, 426. 
Weston V. Charleston, 292. ' 
Wilkinson v. Leland, 180. 
Wilson, Mr. Justice, 104, 105, 106, 267. 
Witness in case of treason. Art. 3, § 8 ; 
513. 
against himself in a criminal case, 
Am. 5th; 397, 514. 
Women and children, their right of 
sufii-age, 226. 

Yates, Senator, on suflfi-age, 154. 
Yeas and nays. Art. 1, § 5 ; 167. 

oir President's veto, Art. 1, § 7; 271. 



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